Delhi District Court
State vs 1) Naeem S/O Ramjani R/O I44, on 29 May, 2010
IN THE COURT OF SH. RAJ KAPOOR: LD. ASJ 1,
KARKARDOOMA COURTS: DELHI
Case ID Number. 02402R0063912010
Sessions Case No. 06\ 10
Assigned to Sessions. 16.02.2010
Arguments heard on 29.05.2010
Date of order. 29.05.2010
FIR No. 363/05
State Vs 1) Naeem s/o Ramjani r/o I44,
Janta Colony, Welcome,
Delhi.
Police Station Seelampur
Under Section 392/397/ 34 IPC
JUDGEMENT
1. Briefly facts of the case are that on 29.06.2005 victim Veerpal was going to purchase newspaper from Fathepuri in the early morning at 5:00 A.M. on his bicycle and when he reached near Zhafrabad near Idgah Pulia, accused persons Shahid and Jamshed (already acquitted on 31.08.09) were already present there on road. All of a sudden accused persons apprehended the bicycle of victim and State Vs Naeem FIR no. 363 / 05 1/13 accused Naeem and Gulfam( now P.O.) came from behind side covering their faces with handkerchief. Victim Veerpal objected the act of accused persons and asked them as to why they had stopped him then one of the accused persons started abusing in filthy language and threatened him. Accused Jamshed (already acquitted) had put a knife on the stomach of victim and snatched Rs. 1260/ from the dub of the pant. Accused Naeem along with other coaccused persons in furtherance of their common intention robbed complainant and he used deadly weapon i.e. knife in this offence.
2. This incident was reported to the police at around 5.30 A.M. by the victim at Police Station Seelampur. Accordingly, a case was registered against the accused persons. During the course of trial accused Naeem and accused Gulfam absconded from the judicial proceedings and they were got declared proclaimed offenders. Accused Naeem was again arrested in this case on 08.12.09 and then he was put to face trial of this case. A charge for the offence u/s 392/397/34 IPC was framed against accused Naeem to which he State Vs Naeem FIR no. 363 / 05 2/13 did not plead guilty and claimed trial vide this court order dated 09.03.2010.
3. To prove and substantiate its case against accused Naeem prosecution has examined 10 witnesses namely PW1 HC Nafis Khan, PW2 Veer Pal - victim (hostile witness), PW3 SI Tej Ram Meena, PW4 Ct. Ashok Kumar, PW5 ASI Girraj Singh, PW6 SI Vinai Kumar, PW7 Ct. Anil Kumar, PW8 SI Vijay Pal Singh, PW9 ASI Rati Ram and PW10 ASI Dharamvir in toto.
4. Perusal of the testimony of PW1 HC Nafis Khan reveals that he is a formal witness being duty officer. He has got exhibited FIR No.363/95 u/s 392/34 IPC as Ex.PW3/A. This witness has been crossexamined. No contrary evidence has come on record.
5. PW2 Veer Pal is the most material witness in this case being victim. He appeared in the witness box. For the sake of brevity and convenience his statement is being reproduced verbatim which is as under: State Vs Naeem FIR no. 363 / 05 3/13 "I am doing job of supplying newspaper at different houses. I used to purchase the newspapers from Fatehpuri. On 29.06.2005, I was going to purchase newspaper from Fatehpuri around 5:10 a.m. on my cycle. When I reached near Eidgah Pulia, one boy crossed in front of cycle on the road.
Thereafter, he caught hold my cycle.
In the meanwhile, his one of the associate also reached and thereafter, two of their associates also came.
Two were covering their faces with handkerchief. The faces of two were not covered. The boy who came second put knife on my stomach and took out Rs.1260/ from my inside pocket of pant along with my mobile phone make Nokia model I do not recollect. They threatened me if I raised any alarm they will kill me.
Thereafter, they ran away from the spot on foot. Accused today present in court was not one of those boys who robbed me. Police recovered my half of amount i.e. Rs.600/ but my mobile phone was State Vs Naeem FIR no. 363 / 05 4/13 not recovered by the police.
At this stage, Ld. APP request to cross examine the witness on the point of identity of accused.
Heard. Allowed.
xxxxx by ld. APP for the state.
I cannot say whether accused Naeem today present in court is one of those boys who robbed me as two of the boys were covering their faces. It is wrong to suggest that accused Naeem was one of the boy who robbed me in the aforesaid incident. It is wrong to suggest that I am deposing falsely to save the accused as I have made compromise with him out of court. It is further wrong to suggest that I am deposing falsely being won over by the accused.
xxx by Sh. Phool Singh, Adv. for accused.
Nil. Opportunity given."
On careful perusal of testimony of PW2 Veer Pal it has come on record that he has not deposed a single word against any of the State Vs Naeem FIR no. 363 / 05 5/13 accused persons. Thus, this witness has been got declared hostile by Ld. APP as he did not support the prosecution case on any count. He denied the alleged allegation that accused persons had beaten him. In the crossexamination done by ld. APP, this witness deposed that he cannot say whether accused Naeem present in court is one of those boys who robbed him as two of the boys were covering their faces. This witness has also denied the suggestion that accused Naeem was one of the boy who robbed him in the aforesaid incident.
5. PW3 SI Tej Ram Meena is the formal witness. He deposed that he got executed proceedings of 82 Cr. P.C. against accused Naeem and Gulfam on 12.08.2005. This witness has not been cross examined.
6. PW4 Ct. Ashok Kumar appeared in the witness box. He has got exhibited arrest memo and Personal Search Memo of accused Naeem as Ex.PW4/A and PW4/B. This witness has been cross examined. No contrary evidence has come on record which can State Vs Naeem FIR no. 363 / 05 6/13 suggest that this witness is false one.
7. PW5 ASI Girraj Singh appeared in the witness box. On careful perusal of his testimony it reveals that he has nothing to say about accused Naeem as he has conducted proceedings in respect of accused Jamshed with regard to recovery of knife from accused Jamshed on 30.06.05. This witness has not been crossexamined.
8. PW6 SI Vinai Kumar appeared in the witness box. On careful perusal of his testimony it reveals that on 16.01.2010 accused Naeem was formally arrested by him in the present case vide arrest memo Ex.PW6/A. His disclosure statement Ex.PW6/B was also recorded. He further deposed that he took one day PC remand of accused Naeem to arrest coaccused Gulfam as well as for effecting recovery. He further deposed no recovery could be effected nor Gulfam was arrested. Thereafter, he prepared a supplementary challan against accused Naeem and submitted the same in the court. This witness has been crossexamined by defence counsel. On careful perusal of crossexamination it has come on record that State Vs Naeem FIR no. 363 / 05 7/13 no TIP of accused was got conducted as he was covering his face at the time of incident. He did not contacted complainant after arrest of accused Naeem. It has also come in the crossexamination that accused was taken to place of incident but no pointing out memo was prepared in this regard.
9. PW7 Ct. Anil Kumar appeared in the witness box. On careful perusal of this testimony it reveals that accused Naeem, who was involved in the incident was got declared P.O. by SI Vijay Pal. This witness has been crossexamined by defence counsel. In the crossexamination it has come on record that particulars of accused Naeem were not mentioned in the disclosure statement of accused Jamshed and Shahid. It has also come on record that this witness cannot tell whether Naeem who was involved in the incident is not the same person.
10.PW8 SI Vijay Pal Singh appeared in the witness box. He got exhibited site plan Ex.PW8/A and got exhibited pointing out memo Ex.PW4/D of the place of incident which was prepared at the State Vs Naeem FIR no. 363 / 05 8/13 instance of accused Jamshed @ Guddu. He deposed that during disclosure, accused disclosed the name of his associates Shahid @ Mota, Naeem and Gulfam who had committed the incident of robbery of the present case. He further deposed that accused Jamshed got recovered Rs.310/ from under a stone near Welcome pulia. He further deposed that at the instance of Jamshed, accused Shahid @ Mota was arrested and Rs.300/ were recovered at his instance from his pocket. This witness has been crossexamined by defence counsel. I have perused the same. No contradictory evidence has come on record which can suggest that this witness is false one.
11.PW9 ASI Rati Ram appeared in the witness box. He has deposed that on 29.06.2005 he was posted as ASI at Police Station Seelampur. On that day, he was on night emergency duty from 8:00 p.m. to 8:00 a.m. in the Police Station. At around 5:00 a.m. he received a call vide DD No.10A for investigation from Duty Officer and on receipt of said call he along with Ct. Virender reached at the spot. He further deposed that one Veerpal Singh State Vs Naeem FIR no. 363 / 05 9/13 public person met him and informed that he has been robbed by four boys at Eidgah pulia. He further deposed that he recorded his statement already Ext. as PW2/A and made endorsement upon the same vide Ex.PW9/A. He has further deposed that he made over rukka to Ct. Virender Singh who got registered FIR at Police Station Seelampur. and he requested duty officer to depute some other police official to conduct investigation in the present case. He has also deposed that SI Vijay Pal came from Police Station Seelampur and handed over statement of the complainant to him and apprised him about the facts of the case. This witness has been crossexamined at length. I have perused the same. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
12.PW10 ASI Dharamvir appeared in the witness box. He deposed that on 08.12.2009 he was posted as ASI at Police Station Jama Masjid. He along with Ct. Ashok were present near Seelampur Gurudwara in respect of PO accused. He received a secret information that accused Naeem who is PO in a case of robbery is State Vs Naeem FIR no. 363 / 05 10/13 sitting in the parking of Metro Station. He further deposed that he along with Ct. Ashok and informer reached there and apprehended accused Naeem today present in court at the instance of informer from parking of Shastri Park Metro Station. He further deposed that he was interrogated and during interrogation he confessed his involvement in the case of robbery. He further deposed that he arrested him u/s 41.1 Cr.P.C. vide arrest memo Ex.PW4/A and his Personal Search Memo Ex.PW4/B was also prepared and accused was got medically examined from LNJP Hospital. He further deposed that he prepared a kalandara against accused Naeem u/s 41.1 Cr.P.C. and same is Ex.PW10/A. Thereafter, he got recorded DD No. 14A dated 08.12.2009 at Police Station Jama Masjid regarding arrest of Naeem by him. The true copy of DD No.14A is mark 'Z'. Thereafter, he gave information regarding arrest of the accused to the Duty Officer at Police Station Seelampur. He produced the accused in the court on same day and he was sent to JC. He further deposed that he submitted the kalandara prepared by him in the court and he informed to the concerned IO regarding the facts of the case. This witness has been crossexamined at State Vs Naeem FIR no. 363 / 05 11/13 length. I have perused the same. No contrary evidence has come on record.
13.Having given careful consideration to the testimonies of all witnesses I found that the most material witness i.e. victim PW2 Veer Pal, has not supported the prosecution case on any count. PW2 Veer Pal has not deposed a single word against any of the accused persons. Thus, this witness has been got declared hostile by Ld. APP as he did not support the prosecution case on any count. He denied the alleged allegation that accused persons had beaten him. In the crossexamination done by ld. APP, this witness deposed that he cannot say whether accused Naeem present in court is one of those boys who robbed me as two of the boys were covering their faces. This witness has also denied the suggestion that accused Naeem was one of the boy who robbed him in the aforesaid incident. This part of testimony of this material witness goes to the root of this case and cause to believe that these contradictions form the part of major contradictions. Other witnesses are formal in nature being police officials. Since in this State Vs Naeem FIR no. 363 / 05 12/13 case, the most material witness PW2 Veer Pal has not supported the prosecution case and his deposition found full of contradictions. On the point of major contradictions the Hon'ble Supreme Court of India in a case titled as 'Jaskaran Singh Vs State 1997 SCC (Crl) 651' has observed the following facts that: "When the evidence of first informant is found to be full of contradictions, exaggerations and improvements, he cannot be held to be a truthful witness".
14.In light of the above discussed facts and circumstances of the case, testimony of PW2 Veerpal is crucial for decision to proceeded with the case. Since he has not identified accused Naeem so no incriminating evidence of the nature which can result into conviction of the accused has come on record, so statements u/s 313 Cr. PC of accused Naeem is dispensed with and accused Naeem is acquitted. His bail bond be cancelled and surety is discharged. File be consigned to record room. ANNOUNCED IN THE OPEN COURT ON THIS 29.05.2010 (RAJ KAPOOR) ASJ1/ North - East Karkardooma Courts Delhi State Vs Naeem FIR no. 363 / 05 13/13