Delhi District Court
3. Title Of The Case : State vs Kafel Ahmed & Anr. on 20 February, 2013
IN THE COURT OF SHRI MANISH YADUVANSHI : ACMM0I
(CENTRAL) : TIS HAZARI COURTS, DELHI.
1. Case No. : 0347/P
2. Unique I.D. No. : 02401R0328752003
3. Title of the Case : State Vs Kafel Ahmed & Anr.
FIR No. 242/1998
PS : Paharganj
U/s 392/394/34/411 IPC
4. Date of Institution : 21.07.1999
5. Date of reserving judgment : 19.02.2013
6. Date of pronouncement : 20.02.2013
J U D G M E N T :
a) The Sl. No. of the case : 0347/P
b) The date of commission
of offence : 25.06.1998
c) The name of complainant : Mohd. Hanif S/o Abdul Rehman
R/o Village Baseda, PS Dhampur,
Distt. Bijnor (UP)
d) The name of accused :1) Kafel Ahmed S/o Khalel Ahmed
R/o Vill. Daulatabad, PS Kotwali,
Distt. Bijnor (UP) &
R/o 238/30, Trilok Puri, Delhi
2) Tausif S/o Nanne
R/o Vapari Mohalla, Main Bazar,Loni (UP)
FIR No. 242/1998 State Vs Kafil Ahmed & Anr. Page 1 of 11
e) The offence complained of : 394/397/411/34 IPC
f) The offence charged with : 392/394/411/34 IPC
g) The plea of the accused : Pleaded not guilty
h) The final order : Convicted
i) The date of such order : 20.02.2013
j) The facts of the prosecution leading to registration of the case are as follows:
1. On 25.06.1998, DD No.14A was recorded at PS Paharganj (Ex.PW6/A) regarding a robbery incident near IRC Building in a TSR. It was marked to SI Joginder Singh who with Ct. Ram Kumar reached at the spot where a person namely Mohd. Hanif met them and gave statement (Ex.PW4/A). He, with family, were visiting their relatives since last week at their residence at C73, Gali No.3, Chhiroli Extn.. At 10.30 AM on 25.06.1998, he with his brother Irfan were going to Mumbai. They reached at Regal, New Delhi at 11.15 AM. A TSR bearing registration No. DL1RC0677 with three boys in it stopped near them. The driver of the said TSR asked about their destination and agreed to take them to New Delhi Railway Station @ Rs. 5 per passenger. Mohd. Hanif sat with the driver in front seat while his brother on the rear seat. The complainant's briefcase was kept in between the legs by the rear passenger Tausif. When the said TSR reached a little ahead, the complainant noticed that Tausif had opened his briefcase and was taking out money and his belongings from it. He asked for the TSR to be stopped, on which Tausif asked the driver Kafil to accelerate the vehicle, meanwhile the complainant and his brother Irfan tried to get out but remained hanging from the sides of the TSR due to which they received injuries in their legs. FIR No. 242/1998 State Vs Kafil Ahmed & Anr. Page 2 of 11 Near Reservation Building, HC Dilip Kumar and Ct. Suresh Kumar noticed them. They stopped the said TSR. They tried to overpower the assailants, however third assailant namely Rashid get out of the TSR and and whipped a knife and waived it towards Irfan due to which Irfan received injury on right thumb of his hand. Accused Kafil and Rashid ran away from the spot. The complainant overpowered accused Tausif. On checking, complainant found a sum of Rs. 3000/ and two wrist watches of make Q&Q missing. Accused Tausif had taken the same out from the briefcase and had given the wrist watches and cash to accused Kafil. Accused Kafil could not collect the same being in hurry due to which the cash fell down on the road. The complainant picked up the same. On the above stated statement of the complainant, SI Joginder Singh (PW6) prepared rukka (Ex.PW6/A) and FIR was got registered. Accused Tausif disclosed that he alongwith Kafil and Rashid had stolen Rs. 46,000/ from the briefcase of a person. Out of the same, he had received Rs. 10,000/ from Rashid. He also disclosed about the present incident. At his instance, Rs. 7000/ was recovered. He also got accused Kafil arrested. The recovered cash amount of Rs. 7000/ was found to be the case property in case FIR No. 229/1998 U/s 379 IPC, PS Paharganj. During investigations, both the accused persons refused to take part in TIP proceedings. Accused Rashid could not be arrested. Coaccused Kafil was identified by the complainant and his brother Irfan at the police station as the driver of the offending TSR. After conclusion of necessary investigation, police filed the charge sheet in the court.
FIR No. 242/1998 State Vs Kafil Ahmed & Anr. Page 3 of 11
2. Copy of chargesheet was supplied to both the accused persons namely Tausif and Kafil.
3. During proceedings, accused Tausif was declared PO on 18.03.2004. On 01.04.2004, the court framed charge against accused Kafil Ahmed for commission of offences punishable U/s 392/394/34 IPC and secondly U/s 411 IPC. He pleaded not guilty and claimed trial.
Further during trial, accused Tausif was again arrested. He was also charged with commission of same offences by separate charge dated 04.08.2004. He also pleaded not guilty and claimed trial.
4. The prosecution has furnished a list of 11 witnesses out of which only 6 witnesses were examined. Irfan Ahmed, brother of the complainant was examined as PW1; Duty Officer/HC Savita is PW2; the owner of the offending TSR namely Vijay Anand is PW3; Complainant namely Mohd. Hanif is PW4. Police officials namely HC Suresh and Retd. SI/IO Joginder Singh were examined as PW5 & 6 respectively.
5. PW1 namely Irfan Ahmed is the brother of the complainant and fully supported the case of the prosecution. The accused Kafil was correctly identified by him in the court as the driver of the offending TSR. This witness was duly cross examined by the defence.
FIR No. 242/1998 State Vs Kafil Ahmed & Anr. Page 4 of 11
6. PW2/HC Savita is the Duty Officer at the time of incident. She proved copy of FIR (Ex.PW2/A).
7. PW3/Vijay Anand who is the owner of the offending TSR deposed to have released the offending TSR on superdari. He also deposed that he had given his TSR on rent to accused Tausif.
8. PW4 Mohd. Hanif is the complainant in the present case. Upon his statement (Ex.PW4/A), the present case was registered.
9. PW5/HC Suresh Kumar deposed that on the date of incident, he was on patrolling duty with HC Dilip Kumar. He further deposed that at about 11.20 AM, two persons were hanging from the TSR bearing registration No. DL1RC0677. He and HC Dilip Kumar stopped the said TSR and one boy namely Tausif was apprehended while other two accused persons fled away from the spot. HC Dilip Kumar collected a sum of Rs. 3000/ from the road near the said TSR. HC Dilip Kumar made a call to the police station upon which SI Joginder Singh and Ct. Ram Kumar reached at the spot. Accused Tausif was handed over to them.
10. PW6/SI (Retd.) Joginder Singh is the IO of the present case and conducted investigations. He deposed that upon receipt of DD No. 14A (Ex.PW6/A), he alongwith Ct. Ram Kumar reached at the spot where he met HC FIR No. 242/1998 State Vs Kafil Ahmed & Anr. Page 5 of 11 Dilip. Statement of HC Dilip Kumar was recorded and accused was handed over to him. The case was got registered through Ct. Ram Kumar. HC Dilip Kumar also handed over a sum of Rs. 3000/ stating that the accused Tausif had removed the same from the briefcase of the complainant. The said money was seized by the IO through seizure memo (Ex.PW1/A). Site plan (Ex.PW6/C) was accordingly prepared by the IO. Offending TSR was seized by the IO vide seizure memo (Ex.PW1/B). Accused Tausif was arrested vide arrest memo (Ex.PW1/E). Personal search and disclosure statement of accused are Ex.PW1/F & A/d respectively.
11. PWs namely HC Suresh Kumar and Ct. Ram Kumar were not called in the witness box by the prosecution.
12. All the incriminating evidence on record was explained to both the accused persons in their statement recorded U/s 281 Cr.P.C. Both the accused persons replied that they were not in the TSR bearing No. DL1RC0677 and they both were arrested by the police from their houses and nothing has been recovered from their possession. Despite option, they did not lead DE.
13. Sh. Joginder Singh Malik, Ld. APP for State argued for prosecution whereas Sh. Narender Kumar, Ld. Counsel argued on behalf of both the accused persons.
FIR No. 242/1998 State Vs Kafil Ahmed & Anr. Page 6 of 11
14. The main incident is of committing robbery during which theft took place. It is in the testimony of both the witnesses i.e., PW1 & PW4 that they had boarded a TSR on the day of incident. Number of TSR is provided correctly by PW1, however PW4 did not remember the same. The time of incident, as per charge, is 11.20 AM. Irfan Ahmed has said the same between 7 to 8 AM whereas Mohd. Hanif (PW4) has stated the same to be between 8 to 8.30 AM. However, both these witnesses have deposed in the court of law. There are other ways of ascertaining the time of incident which, according to the rukka is 11.20 AM. Both Irfan Ahmed and Mohd. Hanif have given correct number of occupants in the offending TSR. There was driver on the front seat and two other occupants on the rear seat. Both, PW1 and PW4 have deposed that PW1 sat with the driver while PW4 at the back seat. Both supported each other in saying that PW1 found accused Tausif opening the briefcase (Ex.A1).
Sequence so far established from the evidence is that both the witnesses were the occupants of the TSR in question which was not produced in the court, however superdar/PW3 Sh. Vijay Anand was duly examined. The defence did not object about non production of TSR or about its identity in the cross examination.
15. The testimony of PW1 and PW4 are slightly incoherent, however the same does not depart from the basic case of the prosecution as recorded by the complainant in his statement (Ex.PW4/A). PW4 did not support the prosecution regarding identity of the accused persons as well as registration number of FIR No. 242/1998 State Vs Kafil Ahmed & Anr. Page 7 of 11 offending TSR. At the same time, in his cross examination by Ld. APP for State, he admitted that he had made statement (Ex.PW4/A) to the police. He had also admitted that he signed it at pointA. Therefore, even if there are minor discrepancy in the testimony of PW4, the same can not be disbelieved entirely as the witness admitted to the correctness of his statement made to the police. The prosecution has established the identity of the accused persons through PW1 and PW5. Record indicates that both the accused persons had denied to take part in TIP proceedings. Adverse inference is required to be drawn. The same is not rebutted by defence. To add further, PW1 has supported the prosecution on material aspects. In the chronology of event given by PW1, the sequence where the police officials flagged out the TSR and tried to overpower its occupants is not provided. However, the same stands corroborated from statement (Ex.PW4/A) as well as from the testimony of PW5 HC Suresh Kumar a witness to part of the event. He saw the TSR coming and two persons were hanging from it. PW4 admitted in his cross examination by Ld. APP for State that he did not fell down from the TSR but remained partially hanging out of it. Likewise, PW1 testified that he was hanging from the TSR. In Ex.PW5/A, there is no record to the effect that any body had given beatings to him or to PW4. Both of them had received injuries on their legs. Irfan (PW1) also reportedly received injury on his right hand thumb as the absconder accused Rashid waived a knife on him. In their chief examination, neither PW1 nor PW5 narrated the incident or conduct of absconder accused Rashid. However, both of them unanimously said that the accused Tausif had opened the briefcase (Ex.A1) and was taking out belongings FIR No. 242/1998 State Vs Kafil Ahmed & Anr. Page 8 of 11 of PW1. This briefcase was seized from the spot upon execution of seizure memo (Ex.PW1/D) which is signed by PW1 Irfan Ahmed at pointA. Likewise, the cash of sum of Rs. 3000/ which as per PW1 was in his briefcase, was found from the road i.e., spot of occurrence and was taken in to police possession by executing memo Ex. PW1/A signed by PW1 at pointA.
16. The chronology of events therefore are clear to the effect that accused Tausif had opened the briefcase of PW1 in the presence of PW4 in the offending TSR, upon raising of alarm by the complainant as recorded in Ex.PW4/A, they accelerated the said TSR during which process, PW1 & 4 were hanging outside it.
PW1 claims that he fell down from the TSR and picked his 'atachi'. PW4, in his cross examination by State, also admits that he was hanging out of the TSR. He admits that near reservation building, Ct. Suresh Kumar tried to apprehend the TSR. He admits that he also apprehended one accused which according to initial statement (Ex.PW4/A) duly corroborated by PW5 was accused Tausif. The original currency notes were not produced, however photocopies of the same (MarkA) were produced. There is no cross examination of PW4 on said aspect.
17. Comparing the testimony of aforesaid witness with PW5, it woud be categorically clear that the accused Tausif was apprehended by PW4 namely Mohd. Hanif. Near TSR, money was lying and was actually picked up by HC Dilip and no by PW1. The fact in issue is to the effect that the money was lying FIR No. 242/1998 State Vs Kafil Ahmed & Anr. Page 9 of 11 on the road. The fact regarding discrepancy to the effect that it was PW4 who had picked up the currency notes and handed over the same to PW5 is inconsequential and it does not affect the prosecution's case.
18. It is proven that in furtherance of their common intention, the accused persons committed robbery and theft of Rs. 3000/
19. However, it is also a fact that both the witnesses (PW1 & PW4)were hanging out of the TSR. The said TSR was being accelerated in the meanwhile by accused Kafil. PW1 and PW4 claimed to have received injury on their legs. It is also claimed by PW1 that he received injury on his right thumb which according to PW4 was a result of brandishing of knife by the accused who is absconding. However, this fact was not brought on record by either of them during their examination in the court. PW5 is also silent about it. These injuries have not been proved. It was imperative for the prosecution to establish that the injuries were caused on the person of the injured voluntarily in the process of commission of crime or if not voluntarily, it was within the knowledge of the perpetrator of crime that he is likely to cause injuries of the nature defined in section 394 IPC. There is nothing in the judicial file to suggest that the threewheeler scooter was driven in such a manner so as to cause injuries on the person of PW1 and PW4 in order to shake them off the TSR. They may have received injuries in the process, however such injuries are to be related to the cause i.e., voluntary intention of the accused persons. The same is missing.
FIR No. 242/1998 State Vs Kafil Ahmed & Anr. Page 10 of 11
20. In the result of aforegoing discussion, I am of the considered view that the prosecution has been able to prove that the accused persons, in furtherance of their common intention, committed offence punishable U/s 392 IPC. The ingredients of offence U/s 394 IPC are missing.
21. The alternate charge of retaining possession of stolen property i.e., Rs. 3000/ thereby committing offence punishable U/s 411 IPC is not required to be separately proved as I have already pointed out that the substantive offence of theft was committed by the accused persons in furtherance of their common intention while committing robbery. Moreover, the recovery of the cash amount of Rs. 3000/, copy of which is MarkA collectively was found abandoned on the road and was in possession of none at the time of its recovery.
22. In the result, both the accused persons are convicted for commission of offence punishable U/s 392/34 IPC. Be heard separately on point of sentence.
Announced in the open court (MANISH YADUVANSHI) on 20.02.2013 ACMM01 DELHI
It is certified that this judgment contains 11 (eleven) pages and each page bears my signature.
(MANISH YADUVANSHI) ACMM01 DELHI FIR No. 242/1998 State Vs Kafil Ahmed & Anr. Page 11 of 11