Delhi District Court
State vs . Shamim Ahmad @ Chaman, on 10 December, 2012
IN THE COURT OF SH. RAVINDER DUDEJA: ADDITIONAL
SESSIONS JUDGE; (EAST) FTC, E-COURT :
KARKARDOOMA COURTS: DELHI.
SESSIONS CASE No. 79/06
FIR No. 185/2000
U/S: 395/397/34 IPC & 25 Arms Act
PS: Geeta Colony
State Vs. Shamim Ahmad @ Chaman,
S/o Naseem Ahmad,
R/o 194, Gali No. 17,
Kardam Puri Main Chowk,
Shahdara, Delhi.
Date of Institution : 01.02.2012
Judgment reserved on : 03.12.2012
Delivered on : 10.12.2012
JUDGMENT
1. This case pertains to dacoity in the office of DESU office, Rani Garden on 25.07.2000. PW-20 IO/SI Dinesh Arya along with Constable Rajesh reached at the spot, three employees of DESU met him. PW-3 Cashier Gurbax Singh met him and gave the statement Exbt. PW-3/A stating that he was working as Junior FIR No. 185/2000 Page 1 of 18 Cashier and that at about 3.10 pm while sitting on the counter, he was collecting payments, a person aged about 22-23 years of medium built height of 5.5 inches pointed out a katta on him through window and asked him to give money. Two more persons, one wearing full face helmet, brought telephone operator Hari Shankar Sharma, Junior Mistry Shiv Singh and labourer Nanku by pushing them there. All the three persons were pushed in the cabin of operator Om Prakash Sharma and were asked to sit on the floor. The person who was wearing helmet, asked him to open the cabin which was locked from inside. On refusal, that person fired a shot which broke the glass of the window. He then opened the door. One of their associates entered the cabin and took away Rs. 3,73,808/- in a bag. Thereafter, all fled away from the spot. IO SI Dinesh Arya prepared the Rukka Exbt. PW-20/A on the basis of which FIR Exbt. PW-20/B was registered by the Duty Officer under Section 392/397/34 IPC.
2. On the basis of the description given by PW-3 and the other eye witnesses, portraits of the offenders were got prepared. On 01.08.2000, PW-20 received a secret information regarding the involvement of accused Shamim Ahmad in this case. He constituted a raiding party and reached at house No. 194, Street No. 17, Kardam Puri, Shahdara. Accused Shamim Ahmad was not found there. The secret informer told him that accused Shamim Ahmad might be found in Neb Sarai. IO/SI Dinesh Arya FIR No. 185/2000 Page 2 of 18 along with the police team reached house No. 143, Gali No. 5, Bisurtee, Harijan Basti, Neb Sarai but accused Shamim Ahmad was not present there. After 25-30 minutes, accused Shamim Ahmad came on a motorcycle and on the pointing out of secret informer, he was apprehended. He got recovered Rs. 4200/- as part of looted money and made disclosure statement about his involvement in the present case. Accused Shamim Ahmad further disclosed that his brother Islam Ahmad is also involved in this case and was about to come. After one hour, accused Islam Ahmad was also apprehended and he made disclosure statement and got recovered Rs. 1100/- as part of looted money. On 03.08.2000, again on the basis of secret information, accused Dhian Singh @ Dhiani was apprehended from A-17, Rani Garden and he made disclosure statement about his involvement in the present case and got recovered Rs. 500/- as part of the looted money. He also disclosed about accused Sanjay Sharma as one of their associates. Accused Sanjay Sharma was arrested and he also made disclosure statement. On 16.08.2000, again on the basis of secret information, accused Ram Charan @ Munna was arrested at Ambedkar Park Road near Yamuna Pushta. Accused Ram Charan fired on the police party but was apprehended and a katta was recovered from his possession. He also made a disclosure statement and got recovered Rs. 18000/- as part of the looted money from a cooler in a Dhaba near Banta Singh Factory.
FIR No. 185/2000 Page 3 of 183. On completion of investigation, charge sheet was filed against all the five accused under Section 395/397/34/120-B IPC. Charges under Section 120-B, 395/397 IPC were framed against all the accused by my learned predecessor on 11.03.2002 to which they pleaded not guilty and claimed trial. Separate charge under Section 25 Arms Act was framed against accused Islam Ahmad. He also pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution examined 21 witnesses. PW-1 Om Prakash Sharma is the eye witness who was working as Junior Cashier and was present at the spot. He admitted his signatures on seizure memo of empty cartridge Exbt. PW-1/A. PW-2 Shiv Singh is also an eye witness of the incident. PW-3 Gurbax Singh is the complainant, he proved his statement Exbt. PW-3/A. PW-4 Nanku Ram and PW-5 Jameel Ahmad are the employees of DESU who were present at the spot. PW-6 K.C. Varshney, Senior Scientific Officer (Ballistic) FSL proved his report Exbt. PW-6/A. PW-7 Constable Shiv Murti Yadav accompanied the IO on 03.08.2000 while arresting accused Dhian Singh. He proved the disclosure statement of accused Dhian Singh as Exbt. PW-7/A, personal search memo Exbt. PW-7/B, seizure memo of currency notes recovered from accused Dhian Singh as Exbt. PW-7/C, personal search of accused Sanjay Sharma as Exbt. PW-7/D and disclosure statement of accused FIR No. 185/2000 Page 4 of 18 Sanjay Sharma as Exbt. PW-7/E. PW-8 HC Yatinder Kumar accompanied the IO on 16.08.2000 for the arrest of accused Ram Charan @ Munna. PW-9 Rajesh Kumar reached at the spot on 25.07.2000 with IO. PW-10 retired ASI Rampal Singh on 25.07.2000 was posted in PCR Van Romeo 13, on receiving a call from control room, he reached at DVB office and opened the kundi and took out the employees. PW-11 HC Rajeev Kumar accompanied the IO on 01.08.2000 when accused Shamim Ahmad and Islam Ahmad were arrested. He proved the seizure memo of accused Islam Ahmad Exbt. PW-11/A, personal search memo Exbt. PW-11/B, sketch of katta Exbt. PW-11/C, seizure memo of pullanda containing katta Exbt. PW-11/D, seizure memo of currency notes Exbt. PW-11/E, seizure memo of motorcycle Exbt. PW-11/F and seizure memo of helmet Exbt. PW-11/G. He also proved the seizure memo of currency notes recovered at the instance of accused Shamim Ahmad Exbt. PW-11/H, seizure memo Exbt. PW-11/I and seizure memo of accused Shamim Ahmad Exbt. PW-11/J. PW-12 Constable Ajay Kumar accompanied the IO on 03.08.2000 for the arrest of accused Dhian Singh and Sanjay Sharma. PW-13 HC Pan Wati proved the FIR Exbt. PW-13/A, endorsement on rukka Exbt. PW-13/B and DD No. 17 as Exbt. PW-13/C. PW-14 Dinesh was given up on the request of learned APP. PW-15 HC Babu Lal took the pullanda from MHCM on 25.10.2000 vide RC No. 88/21 to FSL Malviya Nagar. PW-16 Constable Narender accompanied the IO on FIR No. 185/2000 Page 5 of 18 16.08.2000 when accused Ram Charan @ Munna was apprehended. PW-17 Inspector Harish Chander took the case property on 11.09.2000 to FSL Malviya Nagar vide RC No. 74/21. PW-18 Inspector Harish Chander, SO to Additional DCP, East proved the sanction under Section 39 Arms Act for the prosecution of accused Islam Ahmad as Exbt. PW-18/A. Constable Shrijan was given up at the request of learned APP. PW-19 HC Sunder Lal accompanied the IO on 01.08.2000 for the arrest of accused Shamim Ahmad and Islam Ahmad. PW-20 SI Dinesh Arya, IO of this case proved the Rukka Exbt. PW-20/A, site plan Exbt. PW-20/B, arrest memo of accused Dhian Singh Exbt. PW-20/C and of accused Sanjay as Exbt. PW-20/D, seizure memo of Rs. 18000/- recovered at the instance of accused Ram Charan @ Munna as Exbt. PW-20/E.
5. During the pendency of the case, accused Shamim Ahmad was declared Proclaimed Offender vide orders dated 19.05.2008. Statements of accused Dhian Singh, Islam Ahmad, Ram Charan @ Munna and Sanjay Sharma were recorded under Section 313 Cr. PC. They pleaded innocence and took the defence of false implication. None of them led any defence evidence. My learned predecessor vide judgment dated 25.03.2008, acquitted accused Dhian Singh, Sanjay Sharma, Ram Charan @ Munna and Islam Ahmad.
FIR No. 185/2000 Page 6 of 186. Accused Shamim Ahmad was arrested in case FIR No. 140/10 under Section 394/397/120-B/121/411/34 IPC and under Section 25/54/59 Arms Act, PS Okhla Industrial Area. He was produced before the court on Production Warrants and was taken into custody.
7. PW-9, PW-13, PW-19 & PW-20 were recalled for re- examination after the arrest of accused Shamim Ahmad. PW-11 Kanwaljit Singh Arora, the then MM was examined as PW-21. He had conducted the TIP of accused Shamim Ahmad vide proceedings Exbt. PW-21/B.
8. Statement of accused Shamim Ahmad was recorded under Section 313 Cr. PC. He also took the defence that he is innocent.
9. In his defence, accused Shamim Ahmad examined DW- 1 Roshan Lal Hathwal from BSNL. He could not produce the summoned record regarding telegram booked on 01.08.2000 as the same had already been destroyed.
DW-2 is Anisa Khatoon, mother of accused Shamim Ahmad. She stated that on 01.08.2000, accused Shamim Ahmad left the house for work on 9.00 am and that after sometime her neighbours told her that Shamim has been caught by the police FIR No. 185/2000 Page 7 of 18 and was being beaten and taken to the police station. She came to know that accused had been taken to PS Geeta Colony. On the advice of the neighbourers, she made complaint to ACP/DCP and Hon'ble L.G. by telegram Mark DX at 12.35 pm.
10. Arguments have been heard from Mohd. Iqrar, learned APP for the State and Sarfaraz Asif, Advocate for accused Shamim Ahmad. The learned APP has argued that identity of accused Shamim Ahmad stands established from the statement of the complainant Gurbax Singh (PW-3) and Om Prakash Sharma (PW-1). It is stated that the recovery of looted money from accused Shamim Ahmad further proves his involvement in this case. It is thus submitted that prosecution has been able to bring home the guilt of the accused beyond doubt. The learned defence counsel has argued that accused has been falsely implicated by the police in this case. It is stated that since it was heinous crime, to solve it, the police falsely implicated the accused. It is submitted that PW-1 and PW-3 have identified the accused at the instance of the police and the recovery of Rs. 42,000/- from accused Shamim Ahmad does not prove that it was looted cash. It is also stated four of the co-accused have already been acquitted by the court.
11. PW-3 Gurbax Singh is the complainant. He deposed that on 27.05.2000, he was sitting on cash counter No. 620, Kanchan FIR No. 185/2000 Page 8 of 18 Apartments, Rani Garden, Delhi and at about 3.20 pm while he was counting the currency notes, one person, whose name was later revealed as Shamim Ahmad, came from behind and asked him to open his cabin. He did not open the cabin and stood up and saw that in his adjoining cabin, Junior Cashier Om Prakash and other colleagues were sitting under the table and T.O. R.P. Sharma was also sitting down along with Nanku in the cabin. Those persons asked him to open the cabin saying that otherwise they would be killed. There were two persons, one wearing helmet. The person who was wearing helmet, fired from his katta, he ducked and the pallet hit the glass pane and the glass was broken. He then opened the cabin. He was also detained in the same cabin where his colleagues were forcefully detained. The other person came there and collected the cash of Rs. 3,73,808/- in a bag and went away after closing the door. They called a person having taxi stand outside their office and asked him to call the PCR on phone. Three PCR vans came at the spot and they were rescued. Their statements were recorded by the police. The used cartridge was handed over to the police. PW-3 identified accused Shamim Ahmad as the person who had fired at him. He also identified the helmet Exbt. P-2 which was worn by accused Shamim Ahmad.
12. PW-3 was cross examined by the learned APP after seeking permission from the court. In the said cross examination, FIR No. 185/2000 Page 9 of 18 he admitted that incident took place on 25.07.2000 and not on 27.05.2000. He admitted that he was called in police station by the IO where he identified accused Sanjay on 13.08.2000 and accused Shamim Ahmad on 14.08.2000. During cross examination by accused, PW-3 stated that accused were brought to police station after 8-10 days of the incident and that he identified the accused only because they were pointed out by the police officials. He stated that accused were first shown to them in the police station and then he was taken to central jail to identify both the accused where accused refused to get identified. The learned APP re-examined PW-3. PW-3 denied the suggestion that he identified accused Sanjay and Shamim Ahmad on his own without being pointed out by the IO.
13. PW-1 Om Prakash is the other important witness of the prosecution. He deposed the similar facts as deposed by complainant (PW-3). Regarding the identification of accused, he stated that accused Shamim Ahmad is the same person who was wearing helmet at that time and had put pistol on the forehead of telephone operator. He stated that accused Shamim Ahmad and Sanjay had pushed Gurbax Singh inside the cabin in which he and his associates were present and made them sit on the floor of the cabin and thereafter they bolted the main gate and flee away. In cross examination, PW-1 stated that on the 8th day of the incident, police showed them accused Shamim Ahmad and FIR No. 185/2000 Page 10 of 18 Sanjay in the police station and he confirmed that they were the accused involved in this case.
14. PW-2 Shiv Singh is also an eye witness present in the office being posted as lineman there. Though he deposed about the incident but failed to identify any of the accused persons as culprits who robbed cash from them. He was cross examined by the learned APP with the permission of the court. In the said cross examination, he stated "accused Shamim was wearing helmet. I did not see his face. Accused Shamim shown to me looks like that person but am not sure about it." In cross examination by the accused, he stated that he was detained in another room from the two other persons and the dacoity was committed in the adjacent room and he did not see what happened in the adjacent room. Thus, PW-2 is not sure about the identity of accused Shamim Ahmad. PW-4 Nanku Ram was working as a labourer in DESU office but he also failed to identify any of the accused persons as robbers. Despite cross examination by the learned APP, he failed to identify accused Shamim Ahmad. Similar is the position with regard to PW-5 Jamil Ahmad. He simply stated that he does not remember the exact date, month and year but 4-5 years back, a dacoity took place in Rani Garden area. His testimony is also of no help in establishing the identity of accused Shamim Ahmad.
15. Out of the four witnesses i.e. PW-1 to PW-4 who are the FIR No. 185/2000 Page 11 of 18 star witnesses of the prosecution, PW-1 has been able to identify accused Shamim Ahmad in court as one of the robbers. He admitted in cross examination that after 8th day of the incident, he was shown the accused Shamim Ahmad and Sanjay at the police station and there he confirmed the involvement of the accused in this case. The incident took place on 25.07.2000 and TIP was conducted on 08.08.2000. If the testimony of PW-1 is to be believed, accused Shamim Ahmad was shown to him at the police station prior to his TIP on 08.08.2000. Thus under these circumstances, refusal on the part of accused Shamim Ahmad to take part in the TIP is justified and his refusal to join the TIP proceedings cannot attract any adverse inference against him as PW-1 and PW-3 have admitted that they were shown the accused Shamim Ahmad and Sanjay in the police station. After showing the accused to the witnesses in the police station, the Test Identification Parade remains an empty formality.
16. The importance of an impartial and fair test identification parade is requirement of law to establish the identity of the accused as one of the perpetrators of the crime. Reliance is placed upon 1971 AIR (SC) 363 wherein in para 16, the Apex Court has relied upon AIR 1951 Calcutta 475, wherein it was observed:
"that fact that witnesses have FIR No. 185/2000 Page 12 of 18 identified in court the accused is of very little consequence in a prosecution under Section 384, Penal Code, when none of the witnesses knew the accused from before.... the corroborative evidence which one is entitled to expect in cases of this nature is the evidence of the witnesses having pointed the accused whom they identified in Court from the midst of other persons with whom they were mixed up at a test identification parade. The evidence of their having identified such persons at a test identification parade has no substantive value, but is very important corroboration of their evidence in court"
17. Evidentiary value of TIP has been discussed in detail by the Apex Court in 2007 (7) SCR 1065 case titled as Heera Vs. State of Rajasthan, where the Apex Court has observed as follows:
(i) The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses.
(ii) Identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigation agency with an assurance that their progress with FIR No. 185/2000 Page 13 of 18 the investigation into the offence is proceeding on the right lines.
The identification can only be used as corroborative of the statement in court. (1971 (2) SCC 75).
(iii) It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade.
(iv) Substantive evidence is the evidence of identification in court-Evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence.
(v) The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade.
(vi) Failure to hold a test identification parade would not make inadmissible the evidence of identification in court.
(vii) The weight to be attached to such identification should be a matter for the Courts of fact - in appropriate cases it may accept the evidence of identification even without insisting on corroboration. AIR 1958 SC 350 relied.
(viii) Absence of test identification parade is not fatal in all cases - Accused can be convicted on the basis of identification in FIR No. 185/2000 Page 14 of 18 Court corroborated by other circumstantial evidence. (1970) 3 SCC 518 relied.
(ix) Much evidentiary value cannot be attached to the identification of the accused in Court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in Court.
(x) Evidence of identification becomes stronger if the witness has an opportunity of seeing the accused not for a few minutes but for some length of time, in broad daylight, when he would be able to note the features of the accused more carefully than on seeing the accused in a dark night for a few minutes.
18. Though none of the eye witnesses i.e. PW-1 to PW-4 have specified the time taken by the culprits in completing the crime but it appears from their statements that it must have not taken more than 5-7 minutes. Needless to note that accused Shamim Ahmad was not known either to PW-1 or PW-3 prior to the incident. As per PW-1 and PW-3, accused was wearing full face helmet. PW-1 must have got only couple of minutes to see accused Shamim Ahmad and that too in the helmet. It is very difficult for anyone to identify a person whom he saw only for a couple of minutes, wearing a full face helmet which covers most part of the face. PW-3 Gurbax Singh admits in cross examination that if a person wearing helmet of the kind as Exbt. P-2 (shown to FIR No. 185/2000 Page 15 of 18 have been recovered from accused Shamim Ahmad) if comes before once, cannot be identified by him if he appears before him without helmet. Though PW-1 identified accused Shamim Ahmad, the possibility that he identified him on the pointing out of the police having been shown to him earlier at the police station cannot be ruled out. Thus, the identity of accused Shamim Ahmad is not established beyond doubt.
19. Prosecution is also relying on the recovery of Rs. 4200/- from the house of accused Mohd. Shamim, which is stated to be part of the robbed cash. The learned defence counsel has assailed the recovery submitting that despite the area being thickly populated, no effort was made by the police to join the public witnesses. PW-11 HC Rajeev Kumar stated that the recovered currency notes were in the shape of 40 notes of Rs. 100/- denomination and 4 notes of Rs. 50/- denomination but according to IO Inspector Dinesh Arya, all the currency notes were in the denomination of Rs. 100/- each. Thus, there is vital contradiction in the testimonies of the witnesses with regard to the denomination of recovered notes. PW-19 HC Sunder Lal admits in cross examination that many persons were present at the house of the accused when they reached there. PW-19 and PW-20 admit that the statement of landlord of the house was not recorded regarding the stay of accused over there. PW-20 in cross examination stated that he had requested 4-5 persons to FIR No. 185/2000 Page 16 of 18 join the investigation. Thus, he himself admits the availability of public persons, although according to him, they had refused to join the investigation. In the case of Harjit Singh Vs. State of Punjab (2002) 6 SCC 739, the Apex Court observed that non- joining of independent witnesses on the statements and memorandum of recovery creates doubts on the statements of police officials and do not inspire confidence. Even if for the sake of arguments, the recovery affected by the police from the possession of accused Shamim is accepted, Rs. 4200/- in itself is not such a big amount which in routine a person like accused may not possess. Moreover, there is absolutely no evidence to establish that Rs. 4200/- was part of the looted amount of Rs. 3,73,808/-. In cross examination, PW-3 admits that there was no identification mark on any of the recovered currency notes so as to link them with robbed notes. IO himself admits in cross examination that no evidence came during investigation that recovered Rs. 4200/- were the part of the looted money except disclosure statement of the accused.
20. PW-1 Om Prakash Sharma identified the helmet allegedly recovered from accused Shamim Ahmad to be the same helmet which he was wearing at the time of incident. There is no evidence that helmet has been identified because of any identification mark. No TIP of helmet was conducted. Similar helmets may be readily available in the market. Therefore, the FIR No. 185/2000 Page 17 of 18 recovery of Rs. 4200/- and helmet from accused Shamim Ahmad does not prove that the recovered currency notes were the part of looted cash or that it was the same helmet which was worn by accused Shamim Ahmad at the time of the incident.
21. Hence, in view of my aforesaid discussion, I am of the opinion that prosecution has failed to prove its case against the accused beyond doubt. Accused is therefore acquitted. However, he is directed to furnish a bond in the sum of Rs. 10,000/- with surety of the like amount under Section 437-A Cr. PC for a period of six months.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE:FTC/E-COURT/KKD/DELHI. ANNOUNCED IN THE OPEN COURT ON 10.12.2012 FIR No. 185/2000 Page 18 of 18