Delhi District Court
State vs . Amit @ Mittu on 13 February, 2014
State Vs. Amit @ Mittu
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 58 of 2012
ID No. 02401R0444172012
FIR No. : 60/12
Police Station : H.N. DIN. RLY.
Under Section : 392/393/394 IPC
State
Versus
AMIT @ MITTU
S/o Late. Gaya Prasad
R/o H.No 882, Gautampuri,
J. J. Colony, Badarpur, Delhi.
.............Accused
Date of Institution : 01.09.2012
Date of committal of the case : 29.09.2012
Date of judgment : 13.02.2014
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State
Sh. Deepak Sharma, Advocate, counsel for accused
SC No. 58/12 Page 1 of 9
State Vs. Amit @ Mittu
J U D G M E N T (ORAL):-
1. Briefly stated facts of prosecution case are that on the statement of complainant Akila, zero FIR No. 07/2012 under Section 392/393/394/397 of Indian Panel Code was registered. On receipt of zero FIR, present FIR was registered at PS GRP Faridabad, Haryana. Complainant Akila and her son-in-law Gulam Nasir alleged that they were travelling in Sampat Kranti, Uttar Pradesh (Train No. 12448) in coach No. HA-1. Train had left from Nizamuddin Railway Station at about 8:15 P.M. and after 15-20 minutes thereafter two unknown armed robbers entered the train and at the pointing out of revolver, they had snatched mobile phone make Videocon, wrist watch, purse containing ` 10,000/-, PAN Card, driving licence and other documents and gold chain, ear rings, ladies purse containing ` 10,000/- to ` 11,000/- from them and they had also threatened to kill them. Accordingly, an FIR for the offence punishable under Section 392/393/394/397 of Indian Panel Code was registered. During investigation, statement of TTI Brijesh Kumar and Attendant Anil Kumar Gupta were also recorded who alleged that the robbers had entered the train between Okhla and Tuglakabad Railway Station. When they entered the coach, Attendant Anil Kumar Gupta raised objection, consequently both the robbers chased him by showing their respective weapon, consequently Mr. Anil Kumar Gupta locked himself in a bathroom. Similarly, TTI Brijesh Kumar also locked himself in Cabin B. They had robbed the passengers who were travelling in Cabin A and thereafter, they went in Coach AC-II and ran away after pulling the chain.
(i) During investigation, on June 14, 2012 an intimation was received from Special Staff South vide DD No. 4A that five persons were arrested and they had disclosed their involvement in the present case. Out SC No. 58/12 Page 2 of 9 State Vs. Amit @ Mittu of them, three accused were arrested on June 18, 2012 whereas two accused persons including Amit @ Mittu were arrested on June 23, 2012.
All were produced in muffled face and an application was moved for Test Identification Parade. During Test Identification Parade, PW Mr. Brijesh Kumar (TTI) and Mr. Anil Kumar Gupta (Attendant) identified the accused Amit @ Mittu whereas other witnesses failed to identify him. Similarly, none had identified other accused persons. Though all five accused were taken on police remand but nothing could be recovered from them. Except accused Amit @ Mittu all accused were got discharged.
2. After completing investigation, challan was filed against the accused for the offence punishable under Section 392/393/394/397 Indian Panel Code.
3. After complying with the provisions of Section 207 Cr.P.C, case was committed to the Court of Sessions on September 24, 2012. Thereafter, case was assigned to this Court on September 29, 2012. Accordingly, case was registered as Sessions case No. 58/12.
4. Vide order dated November 21, 2012, a charge for the offence punishable under Section 392/397 of Indian Panel Code was framed against the accused to which he pleaded not guilty and claimed trial.
5. In order to bring home the guilt of accused, prosecution has examined following eight witnesses:-
PW1 HC Rajvir Singh, duty officer, proved the FIR
PW2 HC Parmanand, duty officer of PS Malviya Nagar,
proved FIR No. 223/12
SC No. 58/12 Page 3 of 9
State Vs. Amit @ Mittu
PW3 Smt. Akila, one of the victims but turned hostile
PW4 Sh. Brijesh Kumar, TTI, material witness
PW5 SI Satish Kumar, proved the Zero FIR
PW6 HC Rati Ram, proved the FIR Ex. PW6/A
PW7 Sh. Anil Kumar Gupta, Attendant, material witness
PW8 Insp. Ram Mehar Singh, investigating officer
(i) Vide detailed order dated February 5, 2012, name of other
witnesses were dropped and prosecution evidence was closed.
6. On culmination of prosecution evidence, accused was examined under Section 313 Code of Criminal Procedure wherein he denied each and every incriminating evidence led by the prosecution and submitted that he has been falsely implicated in this case. However, he refused to lead any evidence in his defence.
7. Learned counsel appearing for the accused sagaciously contended that prosecution case is based on the testimony of PW4 Brijesh Kumar & PW7 Anil Kumar Gupta. Though in their examination-in-chief they had identified the accused but in their cross-examination they categorically stated that they had identified the accused at the instance of investigating officer. PW4 deposed that before going to Tihar Jail for Test Identification Parade, investigating officer had shown 4-5 photos including accused stating him that he had to identify the accused. Similarly, PW7 in his cross- examination deposed hat he had identified the accused as per the instruction of police and further deposed that he categorically told the investigating officer that accused was not involved in the alleged incident but he identified him in the Test Identification Parade as desired by PW8. He further submitted that even from the statement of PW8, it becomes clear SC No. 58/12 Page 4 of 9 State Vs. Amit @ Mittu that he had not conducted the investigation in accordance with law as he even did not show the dossier of suspects to the witnesses. He further submits that victim also did not support the prosecution case as she deposed that the robbers were in muffled face. It is further submitted that there is no other evidence on record to prove the culpability of accused.
8. On the other hand, learned Additional Public Prosecutor submits that no doubt PW4 & PW7 did not support the prosecution case in their cross-examination, but in their examination-in-chief they categorically deposed that accused was one of the robbers and since they had identified the accused in the Test Identification Parade, there is no reason to disbelieve their testimony.
9. I have heard rival submissions made by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
10. PW4 Brijesh Kumar was posted as TTI in the Coach where the alleged incident had taken place. He deposed that robbers were two in numbers and they were carrying fire arms in their hands and due to that reason, he could not intervene. He further deposed that the target of robbers was passengers who were travelling in the Coach and he confined himself in Cabin B. When robbers fled away, he came to know that they had robbed the passengers of HA-I and he further deposed that height of one of the robbers was 6 feet or 6 feet 2 inch and his age was between 24 to 25 years having strong built up body whereas height of another robber was 5 feet 6 inch to 5 feet 7 inch. He also deposed that he had identified one of the robbers in Tihar Jail in Test Identification parade on June 28, 2012 and SC No. 58/12 Page 5 of 9 State Vs. Amit @ Mittu further deposed that accused present in the Court is similar to one of the robbers who committed the robbery in the train but again said that he was the same person. But again said that his face below eyes was muffled with cloth but his upper portion i.e. eyes were unmuffled. During his cross- examination, he deposed that he had seen the robbers for 4-5 seconds and at that time, they were running and there was dim light in the Coach at that time. Thus, it becomes clear that PW4 had seen the robbers only for just few seconds, thus he did not have sufficient opportunity or time to notice the features of the robbers. He further deposed that he is not fully sure whether accused present in Court is the same person who committed the robbery. He is only 25%-30% sure that he is the same person. Thus, it becomes clear that PW4 is not sure that the accused present in the Court was the same person who committed the robbery. He further deposed that before going to Test Identification Parade, police officials had shown 4-5 photographs including the present accused and police told him that the height of the present accused resembled with the height of robber, thus he could be one of the robbers. However, he clarified that after seeing the photograph he did not state to the police with certainty that he was one of the robbers and testified that he had identified the accused in the Test Identification Parade at the instance of police. Thus, from his deposition, it becomes clear that before Test Identification Parade, police had shown the photograph of present accused and he only cast suspicion about the involvement of present accused as his height resembled with the height of one of the robbers but clarified that he identified the accused in the Test Identification Parade at the instance of police. Thus, from his deposition, it becomes clear that PW4 was not sure that accused present in the Court was involved in the alleged incident or not.
11. Similarly, PW7 Anil Kumar Gupta who was working as SC No. 58/12 Page 6 of 9 State Vs. Amit @ Mittu attendant in the said Coach deposed that train was stopped near Okhla and two persons entered the Coach and one of them was having fair complexion and he was tall whereas another person had muffled his face with hanky. He further deposed that when he made enquiry why they entered the first class AC coach, they did not respond. Then he called PW4 Brijesh Kumar and PW4 also made enquiry from them and asked them to show their upgraded tickets. The robber who was in muffled face asked his companion to show the upgraded ticket and then another tall person had pointed out the pistol at him. Accordingly, he rushed into the Coach and intimating the passengers that badmash had entered the coach and asked them to bolt the door from inside. He also confined himself in a toilet in the adjoining coach. He further deposed that after few minutes, train was again stopped and he came to know that robbers had run away after pulling the chain. He further deposed that before going to Tihar Jail, SHO had shown the photograph of one person and asked him that he had to identify the said person in the Test Identification Parade. Though he told the SHO that the said person was not present at that time but SHO asked him to identify him in the Test Identification Parade, accordingly, he identified the said person in the Test Identification Parade. He further deposed that after three days of the incident, police had shown the photographs of some of suspects and he identified one of the persons as robber. But the photographs shown to him before going to Tihar Jail was not of the said person. Since, PW7 was not supporting the prosecution case, he was got declared hostile and cross-examined by learned Additional Public Prosecutor. But nothing could be extracted during his cross-examination which may help the prosecution to prove the culpability of accused. On the contrary, he deposed that when police had shown the photograph of accused to him prior to Test Identification Parade, he told the police that he was not one of the robbers. He further deposed that since one of the SC No. 58/12 Page 7 of 9 State Vs. Amit @ Mittu robbers had muffled his face, he could not identify him and accused is not the person who was tall and having fair complexion. He reiterated that he had identified the accused at the instance of police. Thus, the testimony of PW7 is also not helpful to the prosecution in any manner.
12. Another star witness of the prosecution is PW3 Smt. Akila but she failed to identify the accused stating that the robber who entered the cabin was in muffled face. Thus, the testimony of PW3 is also not helpful to the prosecution to prove the culpability of accused.
13. Next important witness is PW8 Insp. Ram Mehar Singh who in his cross-examination admitted that though in such type of incidents, investigating officer is supposed to show the dossier of suspects to the witnesses to ascertain the identity of robbers but in the instant case, he had not shown any such dossier to the witnesses. He further deposed that he took PW7 to the Portrait Parley but he failed to get prepared the sketch. This shows that PW7 had not sufficient opportunity to note down the features of robbers as he himself deposed that he had locked himself in the toilet of adjoining coach. He further deposed that he did not know whether PW4 & PW7 identified any of the suspects from the dossier and when witnesses failed to get prepared the portrait, he did not record their statement to ensure whether they could identify the culprits in future if shown to them. In these circumstances, the testimony of PW4 & PW7 appear more probable that police had shown the photographs of accused before going to the Test Identification Parade.
14. From the above, I am of the view that testimony of the above said witnesses is not helpful to the prosecution to prove the involvement of accused in the alleged incident. Prosecution has failed to produce any SC No. 58/12 Page 8 of 9 State Vs. Amit @ Mittu other cogent admissible evidence to prove the involvement of accused.
15. Pondering over the going discussion, I am of the considered opinion that prosecution has failed to prove the culpability of accused beyond all reasonable doubts for the offences punishable under Section 392/397 of Indian Panel Code, thus, I hereby acquit the accused Amit @ Mittu from all the charges.
16. Accused be set at liberty forthwith if not required in any other case provided he furnishes a personal bond in the sum of ` 5000/- with one surety in the like amount under Section 437A Cr.P.C for a period of six months from today with condition that he shall appear before the higher Courts if he receives any summons/notice during the said period.
16. File be consigned to record room.
Announced in the open Court on this 13th day of February, 2014 (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI SC No. 58/12 Page 9 of 9