Delhi District Court
State vs . Sharafat Ali & Ors. on 1 October, 2015
IN THE COURT OF SHRI AJAY KUMAR MALIK: MM
(CENTRAL) -04 TIS HAZARI COURTS : DELHI
State Vs. Sharafat Ali & Ors.
FIR No. 456/02
PS: Sarai Rohilla
U/S: 380/457/511/34 IPC
Unique Case ID No. :02401R1012402003
Date of institution of case :31.01.2003
Date on which case reserved for :14.09.2015.
judgment
Date of judgment :01.10.2015.
JUDGMENT U/S 380/457/511/34 IPC
a)Date of offence :30.11.2002.
b)Offence complained of :U/s 380/457/511/34 IPC
c)Name of accused, his parentage :1. Sharafat Ali
& residence S/o Sh. Mohabat Ali
R/oVillage Narayanpur,
P.O. Chandera, PS
Chattari, Distt.
Bulandsahar, U.P.
2. Mohd. Afzal @
Azmal
S/o Sh. Manjoor
Ahmad
R/o Mohalla Kaalan,
Nagina, Distt. Bijnore,
U.P.
FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 1 of 29
3. Mohd. Akram
S/o Sh. Sharif Ahamad
R/o Village Karmas
Kheri, PO+P.S.
Najibabad, Distt.
Bijnore, U.P.
4. Tehjib
S/o Sh. Taukir Ahmad
R/o Village Jeevan
Sarai, P.O. Hassanpur,
Distt. Bijnore, U.P.
5. Mohd. Umar
S/o Mohd. Furkan
R/o A-14/112A, D.D.A,
Flats, Inderlok, Delhi
6. Sharif @ Shiboo
S/o Anis Ahmed Mistri
R/o Mohalla Pahari
Darwaja, Near Mufti
Madarsa, Nageena,
Distt. Bijnore, U.P.
d)Plea of accused :Pleaded not guilty
e)Final Order :1. Accused - Afzal @
Azmal is convicted for
the offence U/s
380/458/511 IPC.
2. Accused - Mohd.
Umar is convicted for
the offence U/s
25/54/59 Arms Act and
acquitted for the
offence U/s
380/458/511/34 IPC.
3. Accused - Tehjib is
FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 2 of 29
convicted for the
offence U/s 25/54/59
Arms Act and
acquitted for the
offence U/s
380/458/511/34 IPC.
4. Accused - Sharafat
Ali is acquitted for the
offence U/s
380/458/511/34 IPC.
5. Accused - Mohd.
Akram is acquitted for
the offence U/s
380/458/511/34 IPC.
6. Accused - Sharif
Ahmed @ Shiboo is
hereby convicted for
the offence U/s 458 IPC
and 380/511 IPC.
JUDGMENT
BRIEF REASONS FOR THE DECISION OF THE CASE:-
1. On 30.11.2002, SI Ram Niwas along with HC Yogender were on patrolling duty in the area. At about 10:10 PM they reached at Gupta Complex, Old Rohtak Road, they heard the noise of "Chor-Chor" "Pakro-Pakro" and saw 5-6 boys running towards railway line. SI Ram Niwas also started chasing the boys out of which one person Mohd. Afzal @ Azmal was apprehended FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 3 of 29 by the IO with the help of complainant - Mohd. Mobin but the remaining boys managed to escape by taking the benefit of darkness. SI Ram Niwas recorded the statement of complainant Mohd. Mobin who stated that he is dealing in business of iron scrap. At about 05:00 PM he locked his house and went to one of his relative at Inderlok for Roza Ikhtiyar Party. When complainant came back at about 10:00 PM he heard the presence of some persons in his house at which he started running on the stairs and saw that the lock of the door has been broken and some person has bolted the door from inside. 4-5 boys were inside the house out of whom one person was wearing the jacket and remaining were wearing the jeans pant. The boys had opened both the iron almirahs and were throwing out the articles from the almirah, complainant raised the alarm "Chor-Chor" at which the boys started running from the doors at balcony and complainant also started chasing them. At the time of chasing, SI Ram Niwas also met in between and apprehended the accused - Mohd. Afzal @ Azmal. The apprehended boy told the names of his associate as Tehjib, Sharafat, Mohd. Umar, Shaboo and Akram and apprised that after the offence they had to meet at 56 bigha park, Shastri Nagar, Dhobi Ghat. On the complaint by the complainant, FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 4 of 29 the case U/s 457/380/511/34 IPC was registered by sending Ct.
Mohd. Iqubal to police station. Disclosure statement of accused Mohd. Afzal was recorded and at the instance of accused - Mohd. Afzal @ Azmal, one iron rod was recovered from the balcony of the house of the complainant. At the instance of accused - Mohd. Afzal, the other three accused i.e. Mohd. Umar, Sharafat Ali and Tehjib were also arrested from 56 bigha park, Shastri Nagar. From the right dub of the pant worn by accused Umar, one iron knife was recovered. IO/SI Ram Niwas prepared the sketch of recovered knife and sealed the same with the seal of RNY. From the right dub of the pant worn by accused Tehjib, one button actuated knife was recovered. IO/SI Ram Niwas prepared the sketch of recovered knife and sealed the same with the seal of RNY. From the right hand of the accused Sharafat, one torch was recovered. IO/SI Ram Niwas seized the torch and sealed the same with the seal of RNY. IO recorded the statement of witnesses. Accused - Mohd. Akram was formally arrested by IO after his arrest and disclosure in case FIR No. 458/02 PS Sarai Rohilla. The charge sheet was filed against above five accused persons. On 30.07.2003, six accused namely Sharif Ahmed @ Shibo surrendered in the court and supplementary FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 5 of 29 charge sheet was filed against him in the court after his refusal to join the TIP proceedings.
2. The cognizance of offence was taken and copy of charge sheet were supplied to accused. After compliance of provisions U/s 207 Cr.P.C. the charges U/s 380/458/511/34 IPC were framed against all the accused persons on 18.08.2004 to which accused persons not pleaded guilty and claimed trial. Charges U/s 25/54/59 Arms Act framed against accused - Tehjib S/o Taukir and accused Mohd. Umar on 18.08.2004 to which they pleaded not guilty and claimed trial.
3. Matter was then listed for PE. Prosecution has produced as many as seven witnesses to prove its version.
4. The prosecution got examined Mohd. Mobin as PW1 on 31.05.2006 who deposed that about two years back at unremembered date he came back to his house after attending some party and saw that lock of the house was broken and 4-5 persons has opened the almirah and spread the articles in disarray condition. PW1 raised the alarm. One of accused fell down on the road, the leg of accused got swellon. PW1 further deposed that the two police persons were also present there who took the accused who was apprehended by the public persons. FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 6 of 29 PW1 further deposed that the apprehended accused told his name as Shaboo.
4.1 During cross examination by Ld. APP, PW1 admitted his complaint to plice as Ex.PW1/A and stated that he do not remember that whether the name of accused apprehended at the spot was Afzal @ Azmal or not. PW1 affirmed that the name of co-accused persons were Tehjib, Sharafat, Umar, Shaboo and Akram. PW1 further affirmed that accused - Akram was standing near the gate of his house with the knife in his hand. PW1 affirmed the preparation of both the site plan Ex.PW1/B and Ex.PW1/C bearing his signatures. PW1 further affirmed that the arrest memo of accused - Mohd. Afzal, Mohd. Umar, Tehjib, Sharafat Ali and Akram as Ex.PW1/D, Ex.PW1/E, Ex.PW1/F, Ex.PW1/G and Ex.PW1/H were prepared in front of him. PW1 further affirmed that the personal search memo of accused - Mohd. Afzal, Mohd. Umar, Tehjib, Sharafat Ali and Akram as Ex.PW1/J, Ex.PW1/K, Ex.PW1/L, Ex.PW1/M and Ex.PW1/N were also prepared in front of him and bears his signatures. PW1 further proved the disclosure statement of accused - Afzal @ Azmal as Ex.PW1/P. PW1 further proved the seizure memo of iron rod, buttondar knife, lock and battery as Ex.PW1/Q, FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 7 of 29 Ex.PW1/R, Ex.PW1/S and Ex.PW1/T. PW1 also proved the seizure memo of iron knife from Mohd. Umar as Ex.PW1/U. PW1 further admitted the sketch of buttondar knife and iron chura as Ex.PW1/V and Ex.PW1/W and also admitted his signatures thereon. PW1 also affirmed the spot identification memo prepared at instance of accused - Akram as Ex.PW1/X. PW1 further affirmed the disclosure statement of accused - Mohd. Akram as Ex.PW1/Y. PW1 correctly identified the case property i.e. one pouch, one broken lock, one buttondar Knife, iron rod of one feet and one iron chura/knife as Ex.P1 to Ex.P5 respectively. 4.2 During cross examination by Ld. Defence Counsel, PW1 stated that accused Umar is his relative and lives in Inderlok but he do not know that what type of work he do.PW1 also stated that his statement was recorded at police post Inderlok on the next day of incident . PW1 further stated that the broken lock and torch was never used by him.
5. The prosecution got examined ASI J.P. Singh as PW2 who proved the FIR No. 456/02 as Ex.PW2/A dated 30.11.2002 and endorsement on rukka as Ex.PW2/B.
6. The prosecution got examined ASI Yogender as PW3 who deposed that on 30.01.2009 he was on patrolling duty along FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 8 of 29 with SI Ram Niwas and about 10:10 PM they reached near Gupta Complex, Old Rohtak Road where they heard the voice of Chor- Chor. After parking their scooter, they chased 5/6 boys who were running towards railway station. PW3 further deposed that Mohd. Afzal was apprehended by complainant - Mohd. Mobin and SI Ram Niwas. SI Ram Niwas recorded the statement of the complainant at which Ct. Mohd. Iqubal got the FIR registered. PW3 further deposed that IO/SI Ram Niwas seized the broken locks, iron rod and recorded the disclosure statement of accused
- Mohd. Afzal. PW3 further deposed that IO also apprehended accused - Sharafat Ali, Mohd. Akram and Mohd. Tehjib from 56 bigha park and correctly identified all the four accused present in the court. PW3 also deposed that on cursory search of accused persons, one button actuated knife was recovered from Mohd. Tehjib, one chura from Mohd. Umar and one ever ready torch was recovered from Sharafat Ali. PW3 correctly identified the case property i.e. Chura as Ex.P1, torch as Ex.P2, rod as Ex.P3, lock as Ex.P4 and knife as Ex.P5.
6.1 During cross examination, PW3 stated that IO asked the public persons to join the investigation but they refused. During cross examination, PW3 was confronted with seizure FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 9 of 29 memo Ex.PW1/3 where he affirmed that the lock seized find mention the name of company as Harrison whereas on showing the case property it was found to be Link.
7. The prosecution got examined Ct. Mohd. Iqubal as PW4 who deposed that on 30.11.2002 at about 11:30 PM he was called to the spot i.e. 444, Phase - I, Shazada Bagh, Inderlok and on the tehrir handed over by IO he got the FIR registered. Accused - Afzal @ Azmal was arrested in his presence and at instance of accused - Afzal one iron rod was recovered from the outside of balcony of house No. 444 towards main road. PW4 further deposed that one broken lock was also seized at the spot vide memo Ex.PW1/S. PW4 further deposed that at the instance of accused - Afzal accused - Mohd. Umar, Tehjib and Sharafat Ali were also apprehended from 56 Bigha Park, Near Dhobi Ghat and in possession of accused - Tehjib, one buttondar knife was also recovered, from possession of accused - Umar one chura was recovered and from the possession of Sharafat one torch was recovered. PW4 further proved his signature on above memos and also on arrest memo of accused persons Ex.PW1/E, Ex.PW1/F, Ex.PW1/G, Ex.PW1/L and Ex.PW1/M. PW4 also affirmed his signature on sketch memo of dagger Ex.PW1/W. FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 10 of 29 PW4 also correctly identified accused - Akram and Umar in the court and identity of other accused namely Tehjib and Sharafat Ali.
7.1 During cross examination, PW4 stated that he was informed through SI Ram Niwas and he cannot say who were informed regarding the incident apart from him. PW4 further stated that before reaching the spot IO did not prepare any document as at that time he was writing the statement of Mobin. PW4 further stated that he do not know the name of the duty office and he cannot say whether any document was prepared by IO when he left for PS for registration of FIR till the time he returned at the spot. PW4 also stated that seizure memo, arrest memo and personal search was prepared in his presence and he had signed the seizure memo, arrest memo and personal search memo. PW4 further stated that the length of recovered iron rod was less than one feet. PW4 further stated that when the accused was arrested no public person was joined as it was about 11:30 pm and no public witness was present. PW4 further stated that the raiding party was consisting of 4-5 members. PW4 further stated that at the time of apprehension of accused persons, they were sitting in 56 Bigha Park, Dhobi Ghat. PW4 further stated FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 11 of 29 that the recovery from accused Omar was knife and the buttondar knife was found in possession from accused Tehjib.
8. The prosecution got examined HC Dalel Singh as PW5 who deposed that on 05.12.2002 he was posted at PP Inderolk as HC and was on patrolling duty with Ct Kuldeep in the are of Gupta Complex and on that day one boy was coming from the opposite site who turned back after seeing us and tried to flee away. They chased him and apprehended him. PW5 further deposed that after that his personal search was taken and one buttondar knife was recovered from his right pocket of his pant. On enquiry his name was disclosed as Akram. PW5 correctly identified the accused Akram in the court. PW5 started the investigation regarding the recovery of knife from the accused u/s 25 Arms Act and necessary documents were prepared. Regarding the same, a separate FIR which is no. 458/02 was also registered and PW5 also interrogated him. PW5 further deposed that the accused disclosed about his involvement in FIR no. 456/02. The accused told PW5 that on 30.11.2002 he alongwith his five other co-accused committed theft from a house. He stated that he was standing outside the house with a knife and his companions entered the house and committed the FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 12 of 29 offence of theft and he stood as a guard to keep a watch. He also stated that somebody raised the alarm "Chor Chor" and therefore they all ran away from the spot. He also told PW5 that he has come today to enquire as to whether his companion have been arrested so far or whether the police has arrested somebody for that case. PW5 recorded the disclosure of the accused and then informed the SI RamNiwas who was IO of this case and handed him the copy of the disclosure. PW5 proved the said disclosure as Ex. PW-5/A. PW5 further deposed that the knife was also seized from the possession of the accused and a separate case which is FIR no.458/02 was also initiated against Akram.
8.1 During cross examination, PW5 stated that IO recorded his statement u/s 161 Cr.P.C in PP Inderlok on 05.12.2002. PW5 further stated that he had read over the said statement and he had not signed it. PW5 further stated that In his presence except him IO had not recorded any statement of any other police official. PW5 further stated that IO had not recorded that one boy was coming from the opposite site who turned back after seeing them and tried to flee away in his statement u/s 161 Cr.P.C. PW5 also stated that he had made the departure entry on FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 13 of 29 05.12.2002 for patrolling and he do not know the number of the said DD entry no. PW5 also stated that IO had not recorded in his statement u/s 161 Cr.P.C that on 30.11.2002 accused along with his five other co-accused committed theft from a house. PW5 further stated that he recorded one disclosure statement of the accused Akram u/s 25 Arms Act in FIR no. 458/02 and he had given the copy of disclosure statement in FIR no. 458/02 to the IO of FIR no. 456/02. PW5 admitted the suggestion that IO had not recorded the disclosure statement in case FIR no. 456/02 PS Sarai Rohilla u/s 380/458/511/34 IPC and 25 Arms Act in his presence.
9. The prosecution got examined Ct. Kuldeep as PW6 who deposed that on 05.12.2002 he was posted at PP Inderolk as Constable and was on patrolling duty with HC Dalel Singh in the are of Inderlok and on that day, at around 5.30 in the morning, they saw that one boy was coming near the Gupta Complex who turned back after seeing them and tried to flee away towards the railway line. They chased him and apprehended him and after that his personal search was taken and one buttondar knife was recovered from his right pocket of his pant. PW6 further deposed that on enquiry his name was disclosed as Akram. PW6 correctly FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 14 of 29 identified the accused Akram in the court. PW6 further deposed that after that the IO HC Dalel Singh interrogated the accused and he disclosed that on 30.11.2002 he alongwith his five other co-accused committed theft from a house no. 444, Shahzada Bagh, Inderlok. He also pointed out the house where the incident of theft was committed. HC Dalel Singh recorded his disclosure statement and then took the accused to Police post and handed the accused to SI RamNiwas, who was IO of this case and handed him the copy of the disclosure. PW6 further deposed that SI Ramniwas got conducted personal search of the accused and also arrested him in his presence. PW6 further deposed that SI Ramniwas also recorded disclosure of the accused in his presence.
9.1 During cross examination, PW6 stated that IO recorded his statement u/s 161 Cr.P,C in this case and that HC Dalel had not recorded any statement in any case. PW6 further stated that he had read over his statement and signed it. PW6 also stated that he was on patrolling along with HC Dalel Singh from 8 pm to 8 am on 05.12.2002 and he had made the entry on roznamcha. PW6 affirmed the suggestion that that the Gupta Complex is a very crowded place. PW6 further stated that at about 5 am, some FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 15 of 29 passers by were coming and IO had not given any notice to them for joining the investigation. PW6 further stated that in his presence, IO had recorded the statement of HC Dalel Singh at about 7:00 am and except him and HC Dalel Singh the IO had not recorded any statement u/s 161 Cr.P.C of any police officer in this case. PW6 further stated that IO recorded his statement in PP Inderlok. PW6 further stated that he went to the spot house no. 444, Inderlok at about 7.15 am and they remained at about 15-20 minutes. PW6 also stated that IO had not done any writing work at the spot on 05.12.2002.
10. Prosecution got examined SI Ram Niwas as PW7 who deposed that on 30.11.2002 he was posted at PP Inderlok PS Sarai Rohilla as a SI and on that day, he along with HC Yogender were on patrolling duty on his own two wheeler scooter and while patrolling when they reached at Old Rohtak Road Near Gupta Complex they heard the voice of "Chor - Chor" "Pakro - Pakro". They also saw 5-6 boys running towards the railway line. PW7 parked his scooter at Rohtak Road and he along with HC Yogender and other public persons present there chased aforementioned 5-6 boys and apprehended one boy near Zakhira Pull Railway Line with the help of the complainant Mohd. FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 16 of 29 Mubeen. PW7 further deposed that the boy apprehended by him disclosed his name as Mohd. Afzal @ Azmal. The remaining boys could not be apprehended due to dark. Thereafter, PW7 along with HC Yogender, complainant and the accused - Mohd. Afzal @ Azmal came at the spot i.e. House No. 444, first floor, Shahzada Bagh, Phase - I, Inderok. PW7 correctly identified the accused - Mohd. Afzal @ Azmal in the court. PW7 further deposed that he interrogated the accused - Mohd. Afzal @ Azmal who disclosed the names of the other co-accused. PW7 further deposed that he recorded the statement of the complainant. PW7 prepared the rukka on the statement of the complainant and proved the same as Ex.PW7/A. PW7 further deposed that he handed over the rukka to Ct. Mohd. Iqbal (Beat Officer) who reached at the spot later on for registration of FIR from the PS. Ct. Mohd. Iqbal reached back at the spot after registration of FIR along with copy of FIR and original rukka and handed over the same to PW7. PW7 prepared the site plan at the instance of the complainant. PW7 also seized the iron rod recovered at the instance of the accused Mohd. Afzal vide seizure memo. PW7 prepared the pulindha of the iron rod and sealed it with the seal of RNY. PW7 arrested the accused Mohd. FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 17 of 29 Afzal vide arrest Memo. PW7 conducted the personal search of the accused Mohd. Afzal vide personal search memo. PW7 also recorded the disclosure statement of the accused Mohd. Afzal. PW7 further deposed that on the disclosure of the accused Mohd. Afzal, he apprehended the other three co-accused namely Mohd. Umar, Tehzib and Sharfat Ali from 56 bigha park at the instance of the accused Mohd. Afzal and with the help of other staff along with Accused Mohd. Afzal and the complainant. PW7 also correctly identified the three accused namely Mohd. Umar, Mohd. Tehzib and Sharafat Ali in the court. PW7 conducted the cursory search of the all the three accused persons and on their cursory search one knife (Chura) was recovered from the accused Mohd. Umar from his right side dub and one buttondar knife from the accused Tehzib and one torch was recovered from the accused Shrafat Ali. PW7 prepared the sketch of the buttondar knife recovered from the accused Mohd. Tehzib. PW7 prepared the sketch of the knife (Chura) recovered from the accused Mohd. Umar. PW7 further deposed that he seized the knife (Chura) recovered from the accused Mohd. Umar vide seizure memo. PW7 seized the buttondar knife recovered from the accused Mohd. Tehzib vide seizure memo. PW7 seized the torch FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 18 of 29 recovered from the accused Sharaft Ali. PW7 further deposed that he arrested the accused persons namely Mohd. Umar, Mohd. Tehzib and Sharafat Ali vide arrest memos already Ex.PW1/E, Ex.PW1/F and Ex.PW1/G respectively. PW7 conducted the personal search of the accused Mohd. Umar, Mohd. Tehzib and Sharafat vide personal search memos already Ex.PW1/K, Ex.PW1/L and Ex.PW1/M respectively. PW7 further deposed that thereafter, all the accused persons were taken to the PS and the case property was deposited in the Malkhana. PW7 interrogated the aforementioned three accused who disclosed the names of other two co-accused namely Mohd. Akram and Sharif @ Sibbu who were involved in the present case. PW7 further deposed that on 05.12.2002, accused - Mohd. Akram was arrested in the FIR No. 458/02 PS Sarai Rohilla and he disclosed his involvement in the present case. Thereafter PW7 arrested him vide arrest memo already Ex.PW1/H. PW7 conducted the personal search of the accused - Mohd. Akram vide personal search memo already Ex.PW1/N. PW7 correctly identified the accused in the court. PW7 further deposed that he recorded the disclosure statement of the accused Mohd. Akram. PW7 prepared the pointing out memo at the instance of the FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 19 of 29 accused Mohd. Akram. PW7 further deposed that he seized the broken lock from the spot. PW7 further deposed that the accused Mohd. Sharif could not be apprehended and he took NBW against him from the Hon'ble court. PW7 correctly identified the case property produced by MHC (M) in five cloth pulindhas sealed with the court seal i.e. buttondar knife as Ex.P1, knife (Chura) as Ex.P2, broken lock as Ex.P3, torch as Ex.P4 and iron rod as Ex.P5.
10.1 During cross examination, PW7 affirmed the suggestion that he has not put any specific mark of identification on the case property which were recovered from the accused persons and voluntarily deposed that he has mentioned the particulars on the pulindhas of the case property. PW7 further stated that he do not know whether the case property is easily available in the open market or not. PW7 further stated that the broken lock recovered might be of the make Harrison. PW7 was confronted with the lock and the same is of the Link Company. PW7 further stated that the make of the torch is Eveready but he do not remember whether the glass of the torch was broken or not. PW7 was shown the torch recovered from the accused person and the same is not containing any glass. PW7 was also FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 20 of 29 shown the iron rod and denied the suggestion that the iron rod is Chaini. PW7 admitted the suggestion that that on the last date of hearing he has refreshed his memory without permission of the court after seeing the notes maintained by him in his personal dairy about the present case. PW7 denied the suggestion that he apprehended the accused Mohd. Afzal from the area of Welcome. PW7 also admitted that no written work was done at the railway line. PW7 further stated that he seized the iron rod and lock vide seizure memo before preparing rukka. PW7 further stated that at the time of written work executed by him at the spot, there were public persons along with complainant present there. PW7 further stated that on the seizure memo of rod and lock, he obtained the signatures/thumb impression of the public person i.e. complainant as well as the accused Afzal. PW7 was confronted with the seizure memo of lock where the thumb impression of the accused Mohd. Afzal is not affixed. PW7 also admitted that before preparing the rukka while under interrogation, Accused - Mohd. Afzal disclosed the name of other co-accused and their involvement in the present case. PW7 admitted that the complainant and the accused Mohd. Umar are relative. PW7 further stated that first of all he prepared the FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 21 of 29 tehrir/rukka after the interrogation of the accused. PW7 also stated that the rukka was prepared at the house of complainant but he do not remember the exact time of its preparation. PW7 further stated that at that time many relatives of the complainant and HC Yogender and accused- Afzal were present there and he made the efforts to make witness from the relatives of the complainant but none agreed for the same. PW7 further stated that after 5-10 minutes of the preparation of the rukka he recorded the disclosure statement of the accused- Afzal. PW7 admitted that he recorded the disclosure statement of the accused before registration of FIR.
11. PE was closed thereafter.
12. All the incriminating evidence/material was then put to accused persons which they denied in their statement dated 20.08.2015 recorded U/s 313 Cr.P.C submitting the present case to be false. They wished however not to lead any defence evidence.
13. Final arguments advanced. I have perused the case record.
14. It is observed by this court that the complainant/PW1 specifically deposed regarding factum of lurking house tress pass FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 22 of 29 by the accused during night in order to commit the offence at the house of the complainant.
15. It is also observed that the accused persons were deposed to be present at the house of complainant without being any reason at odd hours of 10:00 PM for purpose of committing the offence, although, the accused persons managed to escape from the spot of offence after getting seen by the complainant but accused - Afzal @ Azmal was apprehended by the complainant and other public persons after chasing him before completion of offence and the offence remained incohate for which the accused persons have been booked for the offence U/s 511 IPC.
16. It is also observed that the prosecution has proved the complaint of complainant as Ex.PW1/A and arrest memo of accused - Afzal @ Azmal dated 30.11.2002 as Ex.PW1/D after apprehending him on the same day in presence of other public persons which beyond any reasonably doubts proves the presence of accused - Afzal @ Azmal at the house of the complainant for purpose of commission of offence.
17. It is further observed by this court that one iron rod Ex.P5 has been recovered at the instance of accused - Afzal vide FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 23 of 29 Ex.PW1/Q and he was arrested during continuation of offence. In view of above observations, accused - Afzal @ Azmal is convicted for the offence U/s 380/458/511 IPC.
18. It is further observed that accused - Mohd. Umar, Tehjib and Sharafat were arrested from 56 Bigha Park in furtherance of disclosure of accused - Afzal @ Azmal. During apprehension of accused Umar one iron knife of 35 cm. was recovered from his possession vide seizure memo Ex.PW1/U and the prosecution has also proved the sketch of that recovered iron knife as Ex.PW1/W. The PWs has successfully deposed regarding recovery of iron chura from the possession of accused
- Mohd. Umar whereas on the other hand the accused failed to give dent to testimony of the witnesses in whom's presence the iron chura was recovered. The accused - Umar also failed to give even iota of doubt regarding his possession of iron chura and recovery thereof. It is further observed that the eye witness PW1 or PW7 or any other PW failed to co-relate accused Umar with the offence of lurking house tress pass during night hours at the house of the complainant. The only evidence against the accused Mohd. Umar regarding the house tress pass is the disclosure memo of accused - Mohd. Afzal @ Azmal. Accused - FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 24 of 29 Umar was neither identified by PW1 nor his name find mention in the FIR. Accused - Umar was also not apprehended at the spot or during the chase of the accused by the complainant or other accompany persons so as to connect accused - Umar with offence U/s 458 IPC. In view of above, accused - Mohd. Umar is convicted for the offence U/s 25/54/59 Arms Act and acquitted for the offence U/s 380/458/511/34 IPC.
19. It is further observed that accused - Mohd. Umar, Tehjib and Sharafat were arrested from 56 Bigha Park in furtherance of disclosure of accused - Afzal @ Azmal. During apprehension of accused Tehjib one button actuated knife of 24 cm. was recovered from his possession vide seizure memo Ex.PW1/R and the prosecution has also proved the sketch of that recovered iron knife as Ex.PW1/V. The PWs has successfully deposed regarding recovery of button actuated knife from the possession of accused - Tehjib whereas on the other hand the accused failed to give dent to testimony of the witnesses in whom's presence the button actuated knife was recovered. The accused - Tehjib also failed to give even iota of doubt regarding his possession of button actuated knife and recovery thereof. It is further observed that the eye witness PW1 or PW7 or any other FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 25 of 29 PW failed to co-relate accused Tehjib with the offence of lurking house tress pass during night hours at the house of the complainant. The only evidence against the accused Tehjib regarding the house tress pass is the disclosure memo of accused - Mohd. Afzal @ Azmal. Accused - Tehjib was neither identified by PW1 nor his name find mention in the FIR. Accused
- Tehjib was also not apprehended at the spot or during the chase of the accused by the complainant or other accompany persons so as to connect accused - Tehjib with offence U/s 458 IPC. In view of above, accused - Tehjib is convicted for the offence U/s 25/54/59 Arms Act and acquitted for the offence U/s 380/458/511/34 IPC.
20. It is further observed that accused - Mohd. Umar, Tehjib and Sharafat were arrested from 56 Bigha Park in furtherance of disclosure of accused - Afzal @ Azmal. During apprehension of accused Sharafat one torch was recovered from his possession vide seizure memo Ex.PW1/T but complainant/PW1 has specifically deposed that he do not use the torch. The recovery of torch from accused Sharafat Ali without proving his presence at the spot of offence has no meaning to co- related the accused Sharafat Ali with the offence of lurking house FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 26 of 29 tress pass during night hours or the attempt of theft therein. It is further observed that the eye witness PW1 or PW7 or any other PW failed to co-relate accused Sharafat with the offence of lurking house tress pass during night hours at the house of the complainant. The only evidence against the accused Sharafat Ali regarding the house tress pass is the disclosure memo of accused - Mohd. Afzal @ Azmal. Accused - Sharafat Ali was neither identified by PW1 nor his name find mention in the FIR. Accused - Sharafat Ali was also not apprehended at the spot or during the chase of the accused by the complainant or other accompany persons so as to connect accused - Sharafat Ali with offence U/s 458 IPC. In view of above, accused - Sharafat Ali is acquitted for the offence U/s 380/458/511/34 IPC.
21. It is further observed that accused - Mohd. Akram was arrested in case FIR No. 458/02 dated 05.12.2002 wherein his disclosure statement was recorded and apart from that there is nothing brought in evidence against accused - Mohd. Akram so as to co-relate him with the offence U/s 380/458/511/34 IPC. It is settled law that any statement given before police cannot be used as an evidence to impart culpability to the person making it. Such statement cannot be used in evidence against any person making FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 27 of 29 the same and no person can be convicted only on the basis of disclosure statement made by him to the police but no recovery got affected in furtherance to that statement. The prosecution has failed to establish the presence of accused - Mohd. Akram at the stop of offence either for the purpose of theft or lurking house tress pass at night. The prosecution has failed to prove the carges against the accused - Mohd. Akram and hence, accused
- Mohd. Akram is acquitted for the offence U/s 380/458/511/34 IPC in the present case FIR.
22. It is observed that after dismissal of anticipatory bail application of accused - Sharif Ahmed @ Shiboo he surrendered before the court on 30.07.2003. The IO moved an application for test identification parade of accused Sharif Ahmed @ Shiboo but vide his statement dated 05.08.2003 he has refused to join the TIP proceedings before then Ld. MM, Smt. Archana Sinha. Ld. MM also explained accused - Sharif Ahmed @ Shiboo that an adverse inference will be taken against him if he refused to join the TIP proceedings but then also accused - Sharif Ahmed @ Shiboo refused to join the TIP proceedings. As the accused - Sharif Ahmed @ Shiboo deliberately avoided the Test Identification Proceedings conducted by the court in order to FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 28 of 29 get the confirmation of presence of accused - Sharif Ahmed @ Shiboo at the spot during the incident so it given the inference that accused - Sharif Ahmed @ Shiboo was present at the spot at the time of commission of offence but having the apprehension in his mind to get identified by the complainant during TIP proceedings he refused to join the same. Such deliberate refusal of accused to join the TIP proceedings despite the explanation given to him by then Ld. MM on 05.08.2003 shows that the accused has tried to evade from the proceedings of the court, hence, adverse inference is taken against the accused - Sharif Ahmed @ Shiboo for not joing the TIP proceedings and accused
- Sharif Ahmed @ Shiboo is hereby convicted for the offence U/s 458 IPC and 380/511 IPC in the present case FIR.
Copy of this judgment be given dasti to the convict persons free of cost.
Announced in the open Court on this 01st Day of October, 2015 (AJAY KUMAR MALIK) MM(Central)-04/THC 01.10.2015.
FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 29 of 29 FIR No. 456/02 PS: Sarai Rohilla 01.10.2015 Present : Ld. APP for the State.
All the accused except accused - Tehjib along with Ld. Counsel.
At oral request of Ld. Counsel, personal appearance of accused - Tehjib is exempted for today only.
Vide separate judgment of even date accused - Afzal @ Azmal is convicted for the offence U/s 380/458/511 IPC, accused - Mohd. Umar is convicted for the offence U/s 25/54/59 Arms Act and acquitted for the offence U/s 380/458/511/34 IPC, accused - Tehjib is convicted for the offence U/s 25/54/59 Arms Act and acquitted for the offence U/s 380/458/511/34 IPC and accused - Sharif Ahmed @ Shiboo is convicted for the offence U/s 458 IPC and 380/511 IPC. Accused - Sharafat Ali is acquitted for the offence U/s 380/458/511/34 IPC and accused - Mohd. Akram is acquitted for the offence U/s 380/458/511/34 IPC Matter is adjourned for Orders on Quantum of Sentence, it be re-listed on 10.11.2015.
(AJAY KUMAR MALIK) MM (Central)-04/NEW DELHI 01.10.2015 FIR No.456/02 State Vs. Sharafat Ali & Ors. Page No. 30 of 29