Delhi District Court
State vs . Asif @ Budda on 12 August, 2016
IN THE COURT OF DR. SAURABH KULSHRESHTHA:
CHIEF METROPOLITAN MAGISTRATE:
CENTRAL DISTRICT:
TIS HAZARI COURTS: DELHI
FIR No.: 169/2015
PS: Bara Hindu Rao
U/s 393/427/34 IPC
State Vs. Asif @ Budda
Unique ID No.: 02401R0722972015
Criminal Case No. 299488/2016
J U D G M E N T:
_____________________________________________________________
(a) S. No. of the case : 294/2
(b) Name of complainant : Ajay Kumar Sharma
(c) Date of commission of : 03.11.2015 offence
(d) Name of the accused : Asif @ Budda S/o Late Sh. Chotey Miyan R/o H. No. 6983 Gali Kharakne Wali Beri Wala Bagh, Azad Market, Delhi.
(e) Offence complained of : U/s 393/427/34 IPC (f) Plea of accused : Pleaded not guilty (g) Date of reserving : 02.08.2016 judgment (h) Final Order : Accused Asif @ Budda is convicted. State v. Asif @ Budda FIR NO. 169/2015, P.S. Bara Hindu Rao Page No. 1 of 24 (i) Date of such order : 12.08.2016 BRIEF STATEMENT OF REASONS FOR THE DECISION OF THE CASE
1. The accused Asif @ Budda was sent up for trial for the alleged offences under section 393/427/34 IPC.
2. The version of the prosecution is that on 03.11.2015 at about 07:55 PM at main Road, Old Rohtak Road, near Iron Bridge, Azad Market, Delhi, the accused along with his associate in furtherance of their common intention attempted to break open the window glasses and doors of the car bearing no. HR-26-BY-5099 belonging to complainant Shri Ajay Kumar Sharma in order to commit robbery and also broke the side rear view mirror of the car. The complainant however managed to prepare a video clip of the incident through his mobile phone. The present FIR was registered on the complaint of the complainant. On seeing the video clip the police official identified the accused Asif @ Budda as he was the bad character of the State v. Asif @ Budda FIR NO. 169/2015, P.S. Bara Hindu Rao Page No. 2 of 24 area and thereafter accused Asif @ Budda was arrested.
3. Thereafter, investigation was completed and chargesheet was filed against the accused. The accused Asif @ Budda appeared before the Court and on 20.01.2016 charges for the offences under sections 393/427/34 IPC were framed against the accused, to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined 09 witnesses.
5. PW-1, HC Bansidhar, deposed that on 03.11.2015, he was posted at PS Bara Hiindu Rao as duty officer and at about 8.00 pm, he received a wireless information which was reduced into writing vide DD No. 18A, which is Ex. PW1/A. The said DD entry was marked to SI Rakesh, who proceeded for the spot alongwith Ct. Yashpal. He further deposed that on the same day, at about 9.55 pm, he received one rukka brought by Ct. Yashpal and State v. Asif @ Budda FIR NO. 169/2015, P.S. Bara Hindu Rao Page No. 3 of 24 sent by SI Rakesh and on the basis of the said rukka he registered the present FIR through the computer installed in the police station. Computerized copy of the said FIR was handed over to Ct. Yashpal for giving the same to SI Rakesh. A copy of the FIR is Ex.PW1/B and his endorsement on rukka is Ex.PW1/C. He further deposed that the FIR was registered through the computer in the regular course of his duties and there was no break down in the system during the period of registration of FIR and taking the print out. Certificate u/s 65-B of Evidence Act is Ex. PW1/D.
6. PW-2, Ct. Sanjeev, deposed that on 04.11.2015 he had handed over the previous conviction/ involvement report of accused Asif @ Budda to the IO which is Ex.PW2/A.
7. PW-3, Shri Ajay Kumar Sharma, deposed that on 03.11.2015 he was going to Rohini from Connought Place by his Duster car bearing registration number HR-26-BY- State v. Asif @ Budda FIR NO. 169/2015, P.S. Bara Hindu Rao Page No. 4 of 24 5099. He further deposed that at about 7.45 pm, he reached Azad Market, Bara Hindu Rao and he was moving his vehicle at a very slow speed when all of a sudden one boy came in front of his car and started shouting and threatening him by his body language and he also gave a punch upon the bonnet of the car. He further deposed that he closed the glasses and doors of his car and locked his car. He further deposed that the said boy tried to break the glasses of his car and continuously gave punches upon the glasses of the car. He further deposed that he also noticed that another boy who was the associate of the first boy also tried to open his car. He further deposed that the accused present in the Court is the same person who had come later on and joined his associate. He further deposed that the associate of accused Asif @ Budha took a stone and threw the same on his car and tried to break open the glass of the car. He further deposed that the accused persons tried to break open the doors/ glasses of his car but they could not succeed. He further deposed that the accused persons broke the right side rear view mirror of the car. He further State v. Asif @ Budda FIR NO. 169/2015, P.S. Bara Hindu Rao Page No. 5 of 24 deposed that he started recording the activities of the accused persons on his mobile phone and when the accused Asif @ Budha had seen this he had given signal to his associate to flee from the spot and thereafter they fled away. He further deposed that the accused persons tried to rob him by breaking open the doors/glasses of the car.
8. PW 3 further deposed that he called the police on 100 number and police reached there. He further deposed that he made a complaint regarding the incident to the police which is Ex. PW3/A. Police prepared site plan at his instance which is Ex. PW3/B. Crime team also inspected his car. The broken mirror was also seized by the police vide seizure memo Ex. PW3/C. He further deposed that he had shown the recording of the incident to the police. He further deposed that accused Asif @ Budha was already known to the police and the police persons identified him in the recording and thereafter he alongwith police officials went in the search of the accused persons and accused Asif @ Budha was apprehended upon his State v. Asif @ Budda FIR NO. 169/2015, P.S. Bara Hindu Rao Page No. 6 of 24 identification. He further deposed that the accused was arrested vide arrest memo Ex. PW3/D and his personal search was conducted vide memo Ex. PW3/E. The pointing out memo is Ex. PW3/F.
9. PW3 further deposed that on 27.11.2015, he again visited the police station and handed over the memory card of his mobile phone having the recording of the incident. The same was kept in match box and sealed by the IO and seized vide seizure memo Ex. PW3/G. He further deposed that he had also prepared a CD of the incident through his computer and he handed over the same to the IO and the same was seized by the IO vide seizure memo Ex. PW3/H. He also handed over certificate u/s 65-B of the Indian Evidence Act with the CD and the memory card and the the same is Ex. PW3/I. The side mirror of the car which was dismantled by the accused persons is Ex. P1. The CD of the video recording of the incident, recorded by the complainant was played in the court. The complainant categorically identified the accused State v. Asif @ Budda FIR NO. 169/2015, P.S. Bara Hindu Rao Page No. 7 of 24 as the culprit and as the person seen the CD also. The CD is Ex. P2.
10. PW-4, Shri Mukul, deposed that he is doing private job at Koncept Printer E-46, Kamla Nagar, Delhi and on 18.12.2015, IO of this case had handed over a CD to him and he developed photographs from the said CD. He further deposed that he had developed the said photographs through his computer installed at his shop and after preparing the same, he had handed over the said photographs and original CD to the IO alongwith a certificate u/s 65-B of the Indian Evidence Act. The certificate is Ex. PW4/A. The photographs are Ex. P1 (colly.).
11. PW-5, ASI Jai Singh, deposed that on 03.11.2015 he along with SI Narender Giri, Inchage, Crime Team, and Ct. Ajay Kumar went to P.S. Bara Hindu Rao after receiving information from control room and they had inspected one Duster vehicle bearing no. HR-26-BY-5099 outside the P.S. State v. Asif @ Budda FIR NO. 169/2015, P.S. Bara Hindu Rao Page No. 8 of 24 He further deposed that he had developed four chance prints from the aforementioned car, lifted the same and sent the same to Finger Prints Bureau, Kamla Market for further investigation. Detailed scene of crime report was prepared which is Ex.PW5/A. He further deposed that the photographs of the vehicle were also taken by photographer Ct. Ajay Kumar.
12. PW-6, Ct. Ajay Kumar, deposed that on 03.11.2015 he along with SI Narender Giri, Inchage, Crime Team, and ASI Jai Singh went to P.S Bara Hindu Rao after receiving information from the control room and they had inspected one Duster vehicle bearing no. HR-26-BY-5099 outside the P.S. He further deposed that he had developed four chance prints from the aforementioned car, lifted the same and sent the same to Finger Prints Bureau, Kamla Market for further investigation. Detailed scene of crime report was prepared which is Ex. PW5/A. He further deposed that five photographs of the said vehicle were taken, developed and thereafter handed over to the IO. State v. Asif @ Budda FIR NO. 169/2015, P.S. Bara Hindu Rao Page No. 9 of 24 The said photographs are Ex. P-3.
13. PW-7, HC Ashok Kumar, deposed that on 03.11.2015 he was posted at PS Bara Hindu Rao as Head Constable and on that day, he joined the investigation of the present case and he saw the video clip in the mobile phone of the complainant Ajay Kumar and identified the accused Asif @ Budha in the said video clip as accused was the BC of his beat area and he knew him well. Thereafter, he alongwith other police officials and the complainant went to the house of accused at 6983, Gali Karkhana, Beriwala Bagh, Azad Market, Delhi and the accused was found in front of his house and the complainant had identified him being the same person who had tried to rob the complainant. IO SI Rakesh Kumar arrested the accused vide arrest memo Ex. PW3/D and his personal search was conducted vide memo Ex. PW3/E. Accused was interrogated and his disclosure statement was recorded and pointing out memo was prepared at his instance. He further deposed that search of the associate of the accused State v. Asif @ Budda FIR NO. 169/2015, P.S. Bara Hindu Rao Page No. 10 of 24 was made but he was not found.
14. PW-8, SI Nagender, deposed that on 03.11.2015 he was posted Incharge Crime Team, North District and on that day, ASI Jai Singh (Finger Print Expert), HC Jagjeet Singh, (Driver) and Ct. Ajay Kumar (Photographer) reached at the road outside PS Bara Hindu Rao after receiving information from the control room where they had inspected one Duster vehicle bearing no. HR-26-BY-5099. He further deposed that they had developed four chance prints from the aforementioned car, lifted the same and sent the same to Finger Prints Bureau, Kamla Market for further investigation. The photographs of the vehicle were also taken. He further deposed that a detailed report in this regard was prepared by ASI Jai Singh and handed over to the IO. The report is Ex. PW5/A.
15. PW-9, SI Rakesh Kumar, deposed that on 03.11.2015 he was posted at PS Bara Hindu Rao and on that day, on receipt of DD No. 18A Ex. PW1/A he alongwith State v. Asif @ Budda FIR NO. 169/2015, P.S. Bara Hindu Rao Page No. 11 of 24 Ct. Yashpal reached at the spot i.e. near Iron Bridge, Old Rohtak Road, Azad Market, Delhi where the complainant Ajay Kumar Sharma alongwith his vehicle bearing registration number HR-26-BY-5099 met him. The complainant gave his written statement to him regarding attempt to commit robbery and mischief which is Ex. PW3/A and he made endorsement Ex. PW9/A thereupon and rukka was handed over to Ct. Yashpal who went to the police station and got the FIR registered. He further deposed that meanwhile, he prepared site plan at the instance of complainant which is Ex. PW3/B. He further deposed that after registration of the FIR, Ct. Yashpal came back alongwith a copy of FIR and original rukka and handed over the same to him. Crime team was also called, which came outside PS Bara Hindu Rao and inspected the vehicle of the complainant and developed chance prints and lifted the same. Photographs of the vehicle were also taken. Crime team report was also taken and the same is Ex. PW5/A. State v. Asif @ Budda FIR NO. 169/2015, P.S. Bara Hindu Rao Page No. 12 of 24
16. PW 9 further deposed that meanwhile, HC Ashok also reached there and joined them. He further deposed that the complainant had shown the video clip of the incident shot by him by his mobile phone and HC Ashok Kumar had identified one of the culprits as accused Asif @ Budha who was BC of the area. He further deposed that he seized the broken mirror of the vehicle vide seizure memo Ex. PW3/C. After that he alongwith HC Ashok Kumar, Ct. Yashpal and complainant went in the search of accused Asif @ Budha at his house situated at 6983, Gali Karkhanne Wali, Beriwala Bagh, Azad Market, Delhi. The accused was found in front of his house in the street and he was duly identified by the complainant and the accused was apprehended. He further deposed that he interrogated the accused Asif @ Budha and his disclosure statement was recorded which is Ex. PW9/B. Accused was arrested vide arrest memo Ex. PW3/D and his personal search was conducted vide memo Ex. PW3/E. Accused also pointed out the spot of crime and pointing out memo was prepared which is Ex. PW3/F. He further deposed that he searched State v. Asif @ Budda FIR NO. 169/2015, P.S. Bara Hindu Rao Page No. 13 of 24 for the other culprit, however he could not be traced despite his best efforts. Case property was deposited in the Malkhana. He further deposed that he recorded the statements of witnesses. Thereafter PE was closed.
17. Thereafter the statement of the accused Asif @ Budda under section 313 Cr.P.C was recorded. The accused denied the prosecution version and stated that he has been falsely implicated in the present case. He further stated that the other person Shoaib had attempted to break the doors/ glasses of the car of the complainant and he only tried to stop Shoaib. However, Shoaib was let off and he was falsely implicated in this case.
18. I have heard the arguments advanced by the Ld. APP for State and the ld. Counsel for accused at length and have also perused the record.
19. The version of the prosecution is that on 03.11.2015 at about 07:55 PM at main Road, Old Rohtak State v. Asif @ Budda FIR NO. 169/2015, P.S. Bara Hindu Rao Page No. 14 of 24 Road, near Iron Bridge, Azad Market, Delhi, the accused along with his associate in furtherance of their common intention attempted to break open the window glasses and doors of the car bearing no. HR-26-BY-5099 belonging to complainant Shri Ajay Kumar Sharma in order to commit robbery and also broke the side rear view mirror of the car. The prosecution has therefore contended that the accused Asif @ Budda is liable for the offences under sections 393/427/34 IPC. As against this the accused has denied the prosecution version.
20. The complainant/ PW3 has categorically deposed that the accused Asif @ Budda and his associate tried to break open the window glasses and doors of his car and he also hit the car with a stone. He further deposed that the the associate of the accused was shouting and his body language appeared to be threatening. He further unequivocally deposed that the accused persons had attempted to rob him by breaking open the doors and glasses of the car. He further deposed that the accused State v. Asif @ Budda FIR NO. 169/2015, P.S. Bara Hindu Rao Page No. 15 of 24 and his associate had also broken the side rear view mirror of his car.
21. The complainant/ PW 3 further deposed that he had recorded the activities of the accused and his associate with his mobile phone. He categorically identified the accused as one of the culprits. The CD of the video recording of the incident, recorded by the complainant, was played in the court. The complainant categorically identified the accused as the culprit and as the person seen the CD also. The CD is Ex. P2. The photographs are Ex. P1.
22. In the judgment titled as Rammi @ Rameshwar v. State of Madhya Pradesh reported as A.I.R. 1999 SC 3544 the Hon'ble Supreme Court observed:
".......When eye-witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But State v. Asif @ Budda FIR NO. 169/2015, P.S. Bara Hindu Rao Page No. 16 of 24 courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny........"
23. There are no material contradictions in the testimony of the complainant and other prosecution witnesses. Further in so far as minor discrepancies are concerned I am of the opinion that the same are totally inconsequential and do not affect the prosecution case.
24. Ld. Counsel for the accused could not elicit anything substantial in the cross examination of the complainant or other PWs so as to discredit their testimonies. As per the previous involvement report of the State v. Asif @ Budda FIR NO. 169/2015, P.S. Bara Hindu Rao Page No. 17 of 24 accused, the accused has been reported to be involved in other cases also. The police was immediately informed and the FIR was registered without any delay. There is videographic evidence also available against the accused. Thus there is no reason to disbelieve the testimony of the complainant. There is also absolutely no reason as to why the complainant would fabricate a false story and falsely implicate the accused.
25. Ld. Counsel for the accused has further argued that other public witnesses were not joined during investigation and therefore the accused is entitled for benefit of doubt. In this regard it may be noted that the Hon'ble Supreme Court in a number of judgments has held that members of public are reluctant to be associated with criminal trials because of their protracted nature and resultant harassment caused and therefore, the mere fact of non joining of public witnesses would not be fatal to the prosecution case where the testimonies of other witnesses otherwise inspire confidence and are worthy of credence. State v. Asif @ Budda FIR NO. 169/2015, P.S. Bara Hindu Rao Page No. 18 of 24 Reference may be made to the judgments titled as Ram Swaroop Vs. State (Govt. NCT) of Delhi reported as 2013 (7) SCALE 407, Ajmer Singh Vs. State of Haryana reported as (2010) 3 SCC 746, State of U.P. v. Anil Singh reported as 1988 Supp SCC 686, Ramjee Rai and others v. State of Bihar (reported as 2006) 13 SCC 229 and Kashmiri Lal Vs. State of Haryana reported as (2013) 6 SCC 595.
26. Further the foundation of the defence of any accused is required to be laid down during the course of cross examination of Prosecution witnesses. The defence of the accused must be suggested to the prosecution witnesses during the course of cross examination. In case a new line of defence, is sought to be introduced during the course of defence evidence or statement under section 313 Cr.P.C. whose foundation has not been laid during the course of cross examination of the prosecution witnesses, such defence cannot be accorded much credibility and viability.
State v. Asif @ Budda FIR NO. 169/2015, P.S. Bara Hindu Rao Page No. 19 of 24
27. Reference may be made to the judgment titled as Ranbir Singh v. State of Haryana, reported as 2000(3) R.C.R.(Criminal) 158 (P&H) wherein it was observed:
".....7. Some defence witnesses had been examined so as to indicate that the version of the petitioner is correct that the was not driving the vehicle rashly and negligently. But this was entirely a new case that had been set up. It had never been so suggested to the witnesses of the prosecution. It was clearly an after-thought and thus the defence was rightly rejected...."
28. The accused has stated in his statement under section 313 Cr.P.C. that the other person Shoaib had attempted to break the doors/glasses of the car of the complainant and he only tried to stop him. However, Shoib was let off and he has been falsely implicated in this case. However, this defence of the accused has not been State v. Asif @ Budda FIR NO. 169/2015, P.S. Bara Hindu Rao Page No. 20 of 24 suggested to the prosecution witnesses. Thus the defence of the accused is neither viable nor it has been proved by the accused. At any rate the defence of the accused is contrary to the clear evidence available on record.
29. As per section 3 of the Indian Evidence Act a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Further under Section 114 of the Indian Evidence Act the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The illustrations appended to the section are illustrative and not exhaustive. Thus it is open to the Court to draw any presumption of fact. State v. Asif @ Budda FIR NO. 169/2015, P.S. Bara Hindu Rao Page No. 21 of 24
30. Adverting to the present case the evidence on record clearly establishes that the accused and his associate had attempted to break open the doors and window glasses of the car of the complainant. The complainant has further deposed that the body language of the associate of the accused was threatening and the accused had also thrown a stone at the car to break open the glass. The complainant has further unequivocally deposed that the accused persons had attempted to rob him by breaking open the doors and glasses of the car. Intention to commit a crime cannot be established by direct evidence and intention has to be established by the facts which preceded, attended and followed the crime. The accused has admitted his presence at the spot. The accused has admitted that his co- accused was trying to open the window glasses and doors of the car of the complainant. The evidence on record falsifies the contention of the accused that he was only trying to stop his co-accused. The evidence on record clearly establishes that the accused Asif @ Budda had clearly tried to open the window glasses and State v. Asif @ Budda FIR NO. 169/2015, P.S. Bara Hindu Rao Page No. 22 of 24 doors of the car of the complainant in an aggressive and threatening manner. The complainant felt it was for the purpose of committing robbery. The accused has not tendered any explanation as to why he and his co-accused were trying to open the window glasses and doors of the car of the complainant. The accused is also previously involved in other case of theft, house breaking, etc. The only presumption which can be drawn from the cumulative effect of these facts and circumstances which have been proved is that the accused persons intended to rob the complainant and they had attempted to commit robbery with the complainant and thereby the accused is liable for the offence under section 393/34 IPC. The accused had also broken the rear view mirror of the car of the complainant and he is therefore liable for the offence under section 427/34 IPC also.
31. Considering the material on record and in view of the foregoing reasons, I am of the opinion that the prosecution has established its case beyond reasonable State v. Asif @ Budda FIR NO. 169/2015, P.S. Bara Hindu Rao Page No. 23 of 24 doubt against the accused and accordingly the accused Asif @ Budda is convicted for the offences punishable under section 393/427/34 IPC.
Announced in the open (Dr. Saurabh Kulshreshtha) court on 12.08.2016 Chief Metropolitan Magistrate Central District Tis Hazari Courts, Delhi.
State v. Asif @ Budda FIR NO. 169/2015, P.S. Bara Hindu Rao Page No. 24 of 24