Delhi District Court
State vs . Imran Sheikh & Ors. on 29 January, 2016
IN THE COURT OF SHRI RAJ KUMAR TRIPATHI
ADDL. SESSIONS JUDGE02 : SOUTH EAST
SAKET COURT : NEW DELHI
IN RE: ID No. 02406R0180072012
SC No. 37/12
FIR No. 30/12
State vs. Imran Sheikh & Ors.
PS: GK1
STATE VS. 1. Mohd. Imran Sheikh
S/o Mohd. Akhtar Sheikh
R/o Raghunath Pur,
Belahi, PS Pandol, District
Madhubani, Bihar
2. Aftab
S/o Sh. Chand Miyan
R/o Dr. Aleem Wali Gali,
IS Market, PS Lisadigate,
Merrut, U.P..
3. Sehzad
S/o Sh. Imran
R/o Gali No.3, Rashid Nagar,
PS Lisadi Gate, Meerut, U.P.
4. Imran
S/o Sh. Iftikar Diwanji
R/o Rabwali Gali, Raseed Nagar,
PS Lisadigate, Meerut, U.P.
SC No. 37/12 Pg. 1 of 17
5. Noor Mohd. @ Haseen
S/o Sh. Ibrahim
R/o H. No.93/2, Janak Puri,
Pilokheri Road, PS Lisadigate,
Meerut, U.P.
__________________________________________________________
Date of Institution : 22.06.2012
Date of transfer of the case
to this court : 04.07.2012
Date of arguments : 22.12.2015
Date of judgment : 29.01.2016
JUDGMENT
1. As per case of prosecution, on 16.03.2012, information was received from phone no. 9971569773, House no. S182, GK I that some goondas have entered in their house. The said information was recorded vide DD no. 28A dt. 16.03.2012 Ex PW14/DA at PS G.KI, New Delhi and same was entrusted to PW14 SI Sandeep Panwar for necessary action.
2. On receipt of DD no. 28A Ex PW14/DA, SI Sandeep Panwar (IO) alongwith HC Shyam Singh (PW5) went to H. No. S182, First Floor, G.KI, New Delhi, where complainant Smt. Raj Kharbanda (PW1) met them and she gave complaint Ex PW1/A. SI Sandeep Panwar made endorsement Ex PW14/A on the complaint Ex PW1/A and gave the same to HC Shyam Singh SC No. 37/12 Pg. 2 of 17 for registration of FIR. HC Shyam Singh went to the PS, got the FIR registered in the case and thereafter, came back to the spot and handed over the copy of FIR and asal tehrir to the IO of the case. Thus, on the basis of complaint made by complainant, FIR u/s 393 of The Indian Penal Code ( in short "IPC") was registered in the case.
3. Matter was investigated as per law. All the five accused were found involved in the commission of offence in the case. Therefore, on conclusion of investigation, they were charge sheeted to face trial for having committed the offence punishable u/s 398 IPC. On their appearance in the court, they were supplied with the copy of charge sheet and complete set of documents and thus, compliance of section 207 of The Code of Criminal Procedure, 1973 ( in short "Cr.P.C." ) was made.
4. As the offence u/s 398 IPC is exclusively triable by the Court of Sessions, therefore, the matter was committed to the Court of Sessions for trial in accordance with law.
5. Prima facie, sufficient material was found to frame charge for offence u/s 398 IPC against all the accused persons. Therefore, charge for the said offence was framed against them, to which they pleaded not guilty and claimed trial.
6. In order to prove its case, prosecution has examined as SC No. 37/12 Pg. 3 of 17 many as 16 witnesses in all. The details of which are given as under:
(i) PW1 Smt. Raj Kharbanda is the complainant, on the basis of whose complaint Ex PW1/A, FIR in the case was registered.
(ii) PW2 HC Vinod Kumar, the duty officer, is a formal witness of the prosecution, who registered FIR Ex PW2/A on the basis of rukka sent by SI Sandeep Panwar and brought by HC Shyam Singh. He made endorsement on rukka which is Ex PW2/B.
(iii) PW3 Rohan Kharbanda is also a victim and eye witness of the incident, who supported the version of his mother PW1 Smt. Raj Kharbanda, the complainant.
(iv) PW4 Ct. Mohit Kumar joined the investigation in the case on the asking of SI Parveen. In the presence of this witness, accused Imran Sheikh was arrested vide arrest memo Ex PW4/B, his personal search was conducted vide memo Ex PW4/C. Disclosure statement of accused Ex PW4/A was also recorded in the presence of this witness.
(v) PW5 HC Shyam Singh, on receipt of DD no. 28A, went to the spot alongwith SI Sandeep Panwar (IO). This is the witness through whom IO got the FIR registered in the case.
SC No. 37/12 Pg. 4 of 17
(vi) PW6 Sh. Ravi Shankar, Secretary, Resident Welfare
Association, G.KI, New Delhi, handed over footage of the CCTV camera in a pen drive to the IO of the case.
(vii) PW7 HC Vipin joined the investigation in the matter with the IO of the case. Accused Imran was arrested vide arrest memo Ex PW7/A in the presence of this witness. Accused Aftab was also arrested vide arrest memo Ex PW7/C. Disclosure statement of accused Aftab Ex PW7/E was also recorded in the presence of this witness.
(viii) PW8 Ct. Rajbir and PW9 Ct. Shanu Kumar are the witnesses, who joined the investigation alongwith IO SI Sandeep Panwar in respect of investigation qua accused Sehzad.
(ix) PW10 W. Ct. Sunni is formal witness of the prosecution. She proved DD no. 79 Ex PW10/A regarding the information received from Crime Branch, Sun Light Colony at PS G.KI.
(x) PW11 SI Rishi Pal Singh, an official from RTO office, Noida U.P, brought the summoned record about registration of vehicle No.UP16L6943 i.e. motorcycle. As per the record brought by the witness, the vehicle was found registered in the name of Rohit Kumar Mishra. He proved copy of RC of the vehicle which is Ex PW11/A. SC No. 37/12 Pg. 5 of 17
(xi) PW12 Ct. Bansidhar joined the investigation with SI Sandeep Panwar (IO) qua accused Noor. Mohd. @ Hasen.
(xii) PW13 SI Praveen Kumar, when posted in Special Unit, Crime Branch, Sun Light Colony, New Delhi, received a secret information about accused in a case of robbery. He alongwith other police officials, at the instance of secret informer, arrested accused Imran Sheikh. Disclosure statement of accused Imran Sheikh Ex PW4/A was recorded by him.
(xiii) PW14 SI Sandeep Panwar is the IO of the case, who on receipt of DD no. 28A Ex PW14/DA, went to the spot alongwith HC Shyam Singh. He made endorsement Ex PW14/A on the complaint Ex PW1/A of complainant Smt. Raj Kharbanda (PW1). He prepared site plan Ex PW14/B at the instance of complainant. He seized the footage of CCTV camera installed at gate No.2 of the colony vide seizure memo Ex PW6/A. He conducted various stages of investigation in the matter and on conclusion of investigation filed charge sheet in the court.
(xiv) PW15 Ms. Gomati Manocha, learned MM conducted TIP proceedings of accused Aftab. She proved the TIP proceedings which is Ex PW15/A and she also proved the Certificate Ex PW15/B given regarding the correctness of the proceedings conducted by her.
SC No. 37/12 Pg. 6 of 17
(xv) PW16 Ms. Colette Rashmi Kuzur, learned MM
conducted TIP proceedings of accused Imran, S/o Iftikar. She proved the TIP proceedings which is Ex PW16/A and she also proved the Certificate Ex PW16/B given regarding the correctness of the proceedings conducted by her.
7. After conclusion of prosecution evidence, statement of accused persons u/s 313 Cr.P.C. was recorded, in which all the incriminating circumstances / material was put to them, to which they claimed innocence and alleged false implication.
8. All the accused opted not to lead evidence in their defence.
9. I have heard and considered the submissions advanced by Sh. M. Zafar Khan, learned Addl. PP for State, Sh. S.K. Saxena, learned counsel for accused Imran s/o Iftikar and Aftab, Sh. Manbir Singh, learned counsel for accused Noor Mohammad @ Haseen, Sh. Fahimuddin, learned counsel for accused Sehzad and Ms. Hena Shah, learned Amicus Curiae for accused Imran Sheikh and carefully perused the entire material on record including the testimony of prosecution witnesses and the documents proved by them during their deposition.
10. PW1 Smt. Raj Kharbanda (complainant) and PW3 Rohan Kharbanda (eye witness) are the star witnesses of the SC No. 37/12 Pg. 7 of 17 prosecution. FIR in the case was registered on the basis of complaint Ex. PW1/A made by complainant Smt. Raj Kharbanda. PW1 Smt. Raj Kharbanda deposed that in December, 2011, she had employed a servant named Imran. She stated that on 16.03.12 at about 4 4:30 PM, she was present at her house alongwith her son Rohan Kharbanda (PW3). They had locked the door from inside. Imran had gone outside the house at about 3:30 PM. He returned back to their house at about 4:15 PM and he called them by pressing call bell. As per the witness, when she opened the doors, accused Imran entered inside the house and when he entered inside, three other persons, who were accompanying accused Imran also entered inside their house. According to PW1 Smt. Raj Kharbanda, one of those three persons, who was immediately behind Imran, pounced upon her. He put a gun on her head. Other of them took his son forcibly in the bathroom. She was pushed down and was threatened that her son would be killed if she raised an alarm. They were threatening her again and again to kill her son. They also took her in the bathroom where her son was there. She was forced to sit on the floor. The boy other than Imran asked her keys of the locker etc. PW1 Smt. Raj Kharbanda as well as her son shrilled. Imran went down stairs. Her devrani Rekha Kharbanda inquired from Imran SC No. 37/12 Pg. 8 of 17 as what happened, then he told her that nothing serious had happened. Rekha Kharbanda, disbelieving Imran, tried to enter their house but she was pushed aside by accused Imran. Imran fled away from their house from a window. The other assailants also followed him. The daughter of Rekha Kharbanda namely Sakshi Kharbanda called the police. On arrival of police, she gave complaint Ex. PW1/A. PW1 Smt. Raj Kharbanda correctly identified accused Imran Sheikh s/o Mohd. Akhtar and Aftab in the court. She could not identify remaining accused persons namely Noor Mohd., Sehzad and Imran s/o Iftikar as the assailants or the persons, who entered in her house alongwith accused Imran Sheikh.
11. PW1 Smt. Raj Kharbanda was cross examined at length. Nothing has come in her cross examination to doubt her veracity. She remained consistent and firm throughout her deposition. Thus, there is no reason to doubt her deposition. She has deposed about the incident whatever happened to her and whatever she saw with naked eyes.
12. It is pertinent to mention here that initially only accused Imran Sheikh and Aftab were apprehended in the case. Co accused Sehzad, Imran and Noor Mohd. @ Haseen were not apprehended. They were apprehended at later stage and after their SC No. 37/12 Pg. 9 of 17 arrest, supplementary charge sheet qua them was filed. On filing of supplementary charge sheet, PW1 Smt. Raj Kharbanda was again examined and cross examined. PW1 Smt. Raj Kharbanda when again examined on 24.07.13 could identify accused Imran and Aftab. She could not identify remaining accused persons. She stated that due to lapse of long time, she was unable to identify remaining accused persons. This witness was again recalled for her cross examination on 26.02.15 on application u/s 311 Cr.P.C. moved on behalf of accused Aftab. This time, she could not identify accused Aftab. Nonidentification of accused Aftab by complainant does not make any difference. Accused Aftab was correctly identified by complainant at the third time when examined and cross examined on 05.09.12 and on 24.07.13. This witness was cross examined by accused Aftab after sufficiently long time i.e. after around a period of 30 months. It was held by Division Bench of Hon'ble High Court of Delhi in Abdul Murasalin Vs. State, 123 (2005), DLT 73(DB) that when there are two different versions given by a witness on the point of identification in his examination in chief and in his cross examination, the version of eyewitness on the point of identification contained in his examination in chief can be acted upon. In view of above settled position of law, identification of SC No. 37/12 Pg. 10 of 17 accused Aftab by complainant Smt. Raj Kharbanda on 05.09.12 and again on 24.07.13 can be acted upon. Her nonidentification of accused Aftab when again recalled for her cross examination on 26.02.15 can be ignored in view of the fact that she had categorically identified accused Aftab as offender in the court twice.
13. PW3 Rohan Kharbanda is also an eye witness of the incident. He deposed that on 16.03.12 at about 4:30 PM, he was present at his house alongwith his mother. At that time, some one pushed the call bell. His mother opened the doors. Accused Imran, who was their servant, entered inside their house alongwith three unknown persons. He deposed that when his mother inquired from accused Imran as to whom he had brought to their house, one of those three boys over powered his mother. He gagged mouth of his mother after putting palm over it. She was pushed aside by that boy. He raised alarm. He further stated that in between two of three boys pointed out gun towards him and one of them took him forcibly in their bathroom. Those two boys, who had pointed gun towards him were threatening to kill him, if he raised alarm. The said boys were asking keys from his mother. His mother was also dragged to the bathroom. He correctly identified accused Imran Sheikh, their servant and SC No. 37/12 Pg. 11 of 17 Aftab, one of the offenders, who was brought in the house by accused Imran. He could not identify the remaining offenders due to lapse of long period. This witness has fully supported and corroborated the version of PW1 Smt. Raj Kharbanda to the extent that accused Imran, who was employed by them as their servant, had brought three persons with him in their house on the date of alleged incident. He further corroborated her deposition to the effect that he was forcibly taken to the bathroom on the point of gun and was threatened to kill in case, they raised alarm. He further testified that the offenders were asking for keys of the Almirah from his mother.
14. PW3 Rohan Kharbanda was cross examined at length by counsel for accused persons, but in his cross examination, nothing has come on record to doubt his version. PW3 Rohan Kharbanda was again examined and cross examined on 24.07.13 when accused Sehzad, Imran and Noor Mohd. @ Haseen were apprehended and supplementary charge sheet was filed qua them. This time again, he identified accused Imran Sheikh and Aftab as the persons, who had trespassed in their house to commit robbery. This witness was again cross examined on 21.04.15 on application u/s 311 Cr.P.C. moved by accused Imran and Aftab. This time, he could identify only accused Imran Sheikh. He deposed that he SC No. 37/12 Pg. 12 of 17 was not able to identify accused Aftab due to lapse to two years. Accused Aftab was identified twice in the court by PW2 Rohan Kharbanda, firstly on 05.09.12 and secondly on 24.07.13. Non identification of accused Aftab at third time i.e. on 21.04.15, after lapse of 31 months by PW2 is not prejudicial to the case of the prosecution. The witness has given cogent reasons that due to long lapse of two years, he was unable to identify accused Aftab. In view of above and the settled position of law regarding identification of accused in his examination in chief and cross examination, nonidentification of accused Aftab at third time is hereby ignored and his identification by the witness twice in the court can be safely acted upon.
15. Accused Sehzad, Noor Mohd. and Imran s/o Iftikar were apprehended in the case on the basis of their disclosure statement. They have not been identified either by the complainant Smt. Raj Kharbanda (PW1) or the eye witness Rohan Kharbanda (PW3) as the persons, who had entered in their house for the purpose of committing robbery. Nothing incriminating was recovered from their possession. IO of the case apprehended the aforesaid accused persons on identification made by him on the basis of CCTV footage installed at gate No.2, SBlock, GK1, New Delhi. The authenticity of CCTV footage has not been proved by the SC No. 37/12 Pg. 13 of 17 prosecution in accordance with law. PW6 Ravi Shankar, the Secretary of Residents Welfare Association, is reported to have handed over the footage of CCTV camera in a pen drive to the IO of the case. The IO, after seeing the footage, identified accused Sehzad, Imran and Noor Mohd.@ Haseen and apprehended them in the case. Admittedly, the CCTV camera or the pen drive was not sent for expert opinion in forensic laboratory. From the CCTV footage, it is not clear that the accused persons entered in the house of complainant and after committing robbery or attempting to commit robbery, they ran away from her house. Moreover, complainant Smt. Raj Kharbanda (PW1) and eye witness Rohan Kharbanda (PW3) are the witnesses, who could have identified the accused persons as the persons who entered in their house and attempted to commit robbery or dacoity. They have failed to identify accused Sehzad, Imran and Noor Mohd.@ Haseen as the persons, who entered in their house for the purpose of committing robbery or dacoity. Thus, identification of accused Sehzad, Imran and Noor Mohd.@ Haseen has not been proved beyond all shadow of reasonable doubt by the prosecution as the persons who are involved in the commission of offence in the case. There is no incriminating material on record to prove the involvement of accused Sehzad, Imran and Noor Mohd.@ Haseen SC No. 37/12 Pg. 14 of 17 in this case. Therefore, benefit of doubt is given to them and they are acquitted for offence punishable u/s 398 IPC.
16. The accused persons have been charged for having committed the offence punishable u/s 398 IPC. Section 398 IPC provides punishment for attempt to commit robbery or dacoity when the offender is armed with any deadly weapon. As per deposition of complainant PW1 Smt. Raj Kharbanda and eye witness PW3 Rohan Kharbanda, gun was used in the commission of offence in the case. They failed to identify the accused as to who had actually used the said gun. The said gun was not recovered at the instance of any of the accused persons. The gun which was allegedly used in the commission of offence in the case was actually a deadly weapon or not has also not been proved by the prosecution. Thus, the accused persons cannot be convicted for having committed the offence punishable u/s 398 IPC.
17. As per complaint Ex. PW1/A made by complainant Smt. Raj Kharbanda, 3 or 4 persons had entered with gun and attacked the residents of their house. PW1 Smt. Raj Kharbanda in her deposition has stated that on the date of alleged incident, when she opened the doors, accused Imran entered inside the house and alongwith him, 3 other persons also entered in her SC No. 37/12 Pg. 15 of 17 house. Similarly, PW3 Rohan Kharbanda has also deposed that when her mother opened the doors, accused Imran, their servant entered inside the house alongwith three unknown persons. Thus, from the deposition of complainant Smt. Raj Kharbanda and eye witness Rohan Kharbanda, it is seen that alongwith accused Imran, only three persons entered their house.
18. The offence of dacaoity has been defined u/s 391 IPC. When robbery is either committed or an attempt to commit it is made by 5 or more persons, then all such persons, who are present or aiding in its commission or in an attempt to commit it, would commit the offence of dacoity. In the present case, prosecution has miserably failed to prove on record that 5 or more persons were involved in the commission of offence in the case, therefore, the accused persons cannot be convicted even for having committed the offence of dacoity punishable u/s 395 IPC.
19. It has been duly proved on record that accused persons entered in the house of complainant Smt. Raj Kharbanda with a view to commit theft in her house. The accused persons were reportedly armed with gun and asked the complainant to hand over the keys of almirah and cash in the house. They put the complainant and her son Rohan Kharbanda in fear of instant wrongful restraint, hurt as well as threatened to kill them in case SC No. 37/12 Pg. 16 of 17 they raised alarm. They attempted to commit robbery in the house of complainant. The identification of accused Imran Sheikh and Aftab has been proved beyond all shadow of reasonable doubt as the persons who entered in the house of complainant and attempted to commit robbery. Prosecution has succeeded to bring home the guilt for offence u/s 393 IPC i.e. attempt to commit robbery against accused Imran Sheikh and Aftab beyond all shadow of reasonable doubt.
20. In view of foregoing reasons, in my view, prosecution has succeeded to prove the offence punishable under section 393 IPC against accused Imran Sheikh and Aftab. Therefore, accused Imran Sheikh and Aftab are hereby held guilty and convicted for having committed the offence punishable under section 393 IPC. Accused Noor Mohd., Sehzad and Imran s/o Iftikar are hereby acquitted in this case as the prosecution has failed to prove its case against them.
Announced in open court (RAJ KUMAR TRIPATHI)
today i.e 29.01.2016 Addl. Sessions Judge02:South East
Saket Court: New Delhi
SC No. 37/12 Pg. 17 of 17