Delhi District Court
State vs 1. Shahid @ Bhoora on 7 May, 2018
IN THE COURT OF SH. AJAY GUPTA, ADDL.SESSIONS
JUDGE02 (EAST) SPL. JUDGE (NDPS) KARKARDOOMA
COURTS, DELHI
SC No. 1630/16
FIR No. 286/07
U/s. 392/394/397/411/34 IPC
PS Vivek Vihar
State Versus 1. Shahid @ Bhoora
S/o Arif
R/o Mohalla Mastark Kasba
PS Meerapur, Distt. Mazafarnagar, UP
2. Sunil @ Sukhria
S/o Rajender
R/o H.No. 292, New Sanjay
Amar Colony, Bhikam Singh
Colony, Delhi
3. Lalla @ Rakesh
S/o Siya Ram
R/o H.No.204, New Sanjay
Amar Colony, Bhikam Singh
Colony, Delhi
4. Sunil
S/o Gaya Prasad
R/o D107, New Sanjay
Amar Colony, Bhikam Singh
Colony, Delhi
Date of Institution: 11.10.2007
Arguments heard 17.04.2018
Date of order 07.05.2018
JUDGMENT
1. The brief facts of the prosecution case as under: A) That on 09.07.2007 vide DD No.22A an information regarding robbery was received at Police Station Vivek Vihar. On receipt of DD No22A, SI Mamman Khan along with Ct. Shaji reached at the spot ie H.No. 28/66, FIR No. 286/07 State Vs. Shahid @ Bhoora etc 1 of 26 Kasturba Nagar, Delhi and recorded statement of complainant Azad Singh. The complainant stated that he is residing at the aforesaid address along with his family and is running a STD booth on the left side of ground floor of his house. He used to sit at the said shop from 6.00 am to 3.00 pm and after that his father Sh. Kanhaiya Lal used to sit. At about 3.00 pm, he had tea with his brother Punit and after that he went to his room situated at 3rd floor where he found that one of the palla of the door was open while other was closed. He called his wife but received no response. When he slightly pushed the door, one boy aged about 20/22 years and of wheatish colour and having moustache, pulled him inside. The complainant tried to get himself released from his grip, however, the said boy again pulled him with his shirt and in this process, all the buttons of complainant's shirt were got broken. The said boy snatched his gold chain weighing 16 grams. There were two more boys present in the said room. One of them took out a knife from his wearing clothes while other boy slapped the complainant and tied his hands and legs with his shirt. While tying hands of the complainant, one of the boys took out his gold ring and wrist watch make TITAN from the hands of complainant by showing knife whilst other boys continued to beat him. In the mean time, one another boy came from 2nd floor with complainant's son namely Hans aged about 8 months who put the knife on the neck of Hans and asked the complainant not to raise alarm else he will kill Hans. Thereafter, all boys threatened the wife of complainant and snatched her gold Tops weighing 4 grams, one necklace (gold & silver) weighing 24 grams, one Mobile phone No.9250187671 (make Tata) and cash Rs.4000/.
B) As per complainant, before committing aforesaid robbery, all four boys FIR No. 286/07 State Vs. Shahid @ Bhoora etc 2 of 26 also committed robbery with complainant's Bhabhi namely Rinku, his tenant namely Vibha and his wife Babita on the point of knife at 2 nd floor of the said house. After committing robbery, all four boys left the complainant in the room at 3rd and thereafter accused persons handed over the child to complainant's wife and locked her in a room at 2 nd floor and fled away from the spot. Somehow the complainant managed to untie himself and made a call at 100 number. On complainant's complaint, an FIR U/s 392/394/397/411/34 IPC was registered.
C) On 13.07.2007, SI Ajay Kumar Yadav (now Inspector) was on patrolling near Chand Cinema along with HC Sahender Pal, Ct. Om Kumar, and Ct. Dharmender where, at about 7.15 pm, accused Shahid, Sunil @ Sukdiya, Rakesh and Sunil S/o Daya Prasad were apprehended. From the search of accused Shahid, one gold chain was recovered from the right side pocket of his pant. From the search of accused Rakesh, one another gold chain was recovered. From the search of accused Sunil @ Sukdiya, one pair gold tops were recovered. From the search of accused Sunil @ Daya Prasad three lockets, two having red colour nug and one having green colour nug were recovered. During interrogation, accused Shahid @ Bhoora made a disclosure statement. In his disclosure statement, accused Shahid disclosed about the commission of dacoity in the house of complainant along with aforesaid coaccused persons. Accused Shahid also got recovered a locket, ring and four choppers. All four accused persons were arrested u/s 41.(b) and 109 of Cr.P.C and SI Mamman Khan, the IO of the case in hand, was informed and said information was reduced into DD No.12A.
FIR No. 286/07 State Vs. Shahid @ Bhoora etc 3 of 26 D)On 14.07.07.2007, SI Mamman Khan along with HC Satish Kumar went to Karkardooma Courts where SI Ajay Kumar produced all four accused persons in the court in muffled case. SI Mamman Khan interrogated all four accused persons and formally arrested them in this case after seeking necessary permission from the Court. Thereafter, IO moved an application for conducting TIP of accused persons but all accused persons refused to participate in TIP proceedings. Thereafter, on 09.08.2007, TIP of recovered case property ie one gold colour chain of rope design, one locket golden colour & one gents ring, one pair of tops of golden colour, one golden colour chain and three golden colour lockets of same designs out of which two with red colour gems and one with green colour gems, one small locket, one single jhumki were conducted.
E)During TIP, victim Smt. Vibha identified all the four golden lockets. Witness Smt. Rinku identified golden colour chain and witness Sh. Azad identified golden colour chain, locket and ring. These victims stated that the said articles belonged to them.
F) After completing the investigation, charge sheet was filed against all the four accused persons under Section 392/394/397/411/34 IPC.
2.After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court.
3.Vide order dated 28.01.2008, charge for the offence punishable u/s 411 IPC was framed against all four accused persons separately whilst a common charge for the offences punishable u/s 392/394 r/w section 397/34 IPC was framed against all the four accused to which, they pleaded not guilty and claimed trial.
FIR No. 286/07 State Vs. Shahid @ Bhoora etc 4 of 26
4.In support of its case, the prosecution examined following eighteen witnesses: (4.1) Sh. Azad is the complainant (PW1). This witness has supported the prosecution case to the extent of commission of offence but remained hostile on the point of identification and categorically stated that accused persons are not those persons who committed robbery in his house.
(4.2) Smt. Babita is the wife of complainant (PW2). This witness also supported the case prosecution case to the extent of commission of offence but failed to identify the accused persons and stated that she cannot identify the accused persons present in the court.
(4.3) Smt. Rinku, the family member of complainant (PW3). This witness also supported the prosecution story upto the commission of offence but failed to identify the accused stating that since accused persons had covered their faces, therefore, she can not identify them.
(4.4) SI Dheeraj Singh is the then crime team incharge (PW4) deposed that on receipt of a call from SI Mamman Khan, he reached the spot and inspected the spot.
(4.5) HC Prasadi Lal is the MHC(R) (PW5) who brought on record the kalandra, DD No.6B dated 13/14.07.2007 u/s 41.1(B) and 109 Cr.P.C consisting DD No.6B, arrest memo and personal search memo of all accused persons and their disclosure statements collectively as Ex.PW5/A. (4.6) HC Subhash, the member of Mobile Crime Team (PW6) who FIR No. 286/07 State Vs. Shahid @ Bhoora etc 5 of 26 took photographs of the spot and brought on record five photographs Ex.PW6/A1 to Ex.PW6/A5 and its Ex.PW6/B1 to Ex.PW6/B5.
(4.7) Ct. Shaji T.A is the witness who accompanied the IO to the spot on receipt of DD 22A and got registered FIR in the present case.
(4.8) Smt. Vibha (PW8) is the tenant of the complainant. PW8 is one of the victims who was also looted on the date of incident. The witness deposed that on 09.07.2007 she was present in her room and daughterinlaw of the landlord namely Rinku was also present in her room. At about 2.30 pm one boy came in her room and stated that her husband had sent him for some work in the house to which PW8 stated that her husband is away at his workplace and he would come in the evening. On this that boy went away and after sometime that boy again came back with a piece of paper/card on which nothing was written, however, that boy stated that his phone number was written on that paper/card. As soon, she held paper and started walking inside the room to keep that paper, that boy caught hold neck of PW8, pressed and snatched her mangalsutra and tops (ear rings). Rs.2000/ were also taken away from the suitcase. While the incident was going on, the elder daughterinlaw of landlord namely Babita (PW2) also entered into her (PW8) room and then gold chain, money etc of Babita were also snatched by that boy. PW8 further deposed that after committing loot in her room, all four boys entered into room of Babita for committing loot. During the incident, when PW8 raised alarm, three more boys came from upstairs; entered in her (PW8) room and joined the boy who entered first and looted her. PW8 further deposed that during incident, accused FIR No. 286/07 State Vs. Shahid @ Bhoora etc 6 of 26 showed knife and her hands were tied. All four accused persons were having knife and after committing loot, they ran away from the spot. The witness stated that all four accused persons present in the court are the same persons who entered into her room and committed loot. PW8 further deposed that she took her mangalsutra on superdari vide superdaginama (Ex.PW8/A). The witness also identified four choppers (Ex.P1 to P4) as the same which the accused persons were having at the time of commission of loot.
(4.9) HC Om Kumar (PW9) is the member of patrolling team. This witness deposed on 13.07.2007 he was on patrolling duty with patrolling team consisting of SI Ajay Kumar, HC Sahender Pal and Ct. Dharmender and at about 7.15 pm when they were present near Chand Cinema in the area of PS Kalyanpuri, Ct. Pop Singh came to SI Ajay along with one secret informer and informed that the accused who had committed dacoity in the area of PS Vivek Vihar, are having possession of the stolen property and intending to dispose of it to some jeweler. Then SI Ajay Kumar formed raiding team and asked public persons to join the team but none agreed. After making necessary inquiry of the secret information from PS Vivek Vihar, they all reached near Sulabh Shauchalya on LBS Road in 21 Block, Kalyanpuri, the place where accused were expected to be present. There, at the pointing out of secret informer, all four accused persons were apprehended whose name, later on, got revealed as Shahid @ Bhoora, Lalla @ Rakesh, Sunil @ Sukhadiya and Sunil. Search of all accused persons were conducted. One gold chain was recovered from right side pocket of pant of accused Shahid, one pair of tops was recovered from the pocket of shirt of FIR No. 286/07 State Vs. Shahid @ Bhoora etc 7 of 26 accused Sunil @ Sukhadiya, three lockets were recovered from the search of the accused Sunil in which two lockets were having red colour stone whereas third was having green colour stone and one gold chain was recovered from the search of the accused Lalla @ Rakesh. All the recovered articles were kept in clothe parcel, sealed with the seal of AKY, seized, and accused persons were arrested. Disclosure statements of accused Shahid (Ex.PW9/A), accused Lalla @ Rakesh (Ex.PW9/B), Sunil (Ex.PW9/C) and accused Sunil @ Sukhadiya (Ex.PW9/D) were recorded. In his disclosure statement, accused Shahid @ Bhoora inter alia disclosed that he can get a gold ring and necklace recovered from near Kasturba Nagar Khatta where he has hidden the same. Pursuant to disclosure, accused Shahid let the police team to Kasturba Nagar Khatta and taken out a polythene carry bag containing a locket and a ring. Accused Shahid also taken out choppers and produced before the IO who kept the recovered articles and choppers in pullanda separately, sealed them and seized them vide seizure memo of Churas (Ex.PW9/F). Pointing out memo of the spot was prepared at the pointing out by the accused persons vide memo Ex.PW9/G. All the recovered articles were seized u/s 102 Cr.P.C vide seizure memo Ex.PW9/E1 to Ex.PW9/E5. The said proceedings were reduced into DD No.6B.
(4.10) HC Lalit Kumar (PW10) is the MHC(R) who brought on record copy of DD No.6B u/s 41.1(b) and 109 Cr.P.C PS Kalyanpuri as Ex.PW10/A. (4.11) HC Satish Kumar (PW11) deposed that on 14.07.2007 in pursuance to DD No.12A, he accompanied the IO SI Mamman Khan to Karkardooma Courts where aforesaid accused persons were produced FIR No. 286/07 State Vs. Shahid @ Bhoora etc 8 of 26 before the court. There, IO interrogated all four accused persons, arrested them vide arrest memo Ex.PW11/A to Ex.PW11/D and recorded their disclosure statements Ex.PW11/E to Ex.PW11/H after seeking necessary permission from the concerned court.
(4.12) Ct. Pop Singh (PW12), HC Dharmender (PW14) and Inspector Ajay Kumar Yadav (PW15) are recovery witnesses who happened to be on patrolling duty on 13.07.2007 and apprehended all four accused persons. All these witnesses have deposed more or less on the similar lines of PW9.
(4.13) SI Sher Singh (PW13) is the Duty Officer who brought on record copy of FIR Ex.PW13/A endorsement Ex.PW13/B. (4.14) Sh. Mukesh Kumar (PW16) is the Ld. ADJ (the then Ld. Magistrate) who conducted TIP proceedings of recovered articles vide TIP proceedings Ex.PW16/A. (4.15) ASI Birpal Singh (PW17) is the MHC(M) who deposed on the point of depositing of six sealed pullandas containing recovered case property by SI Mamman Khan and brought on record copy of relevant entires made by him in register no19 at sl. no.2813 as Ex.PW17/A. (4.16) Sh. Vipin Kumar Rai (PW18) is the Ld. ADJ (the then Ld. Magistrate) who recorded refusal accused Sunil (Ex.PW18/D), of accused Lalla @ Rakesh (Ex.PW18/F), of accused Shahid @ Bhura (Ex.PW18/G) and of accused Sunil @ Sukhadia (Ex.PW18/H) regarding TIP.
5. Statements of all four accused persons were recorded separately under FIR No. 286/07 State Vs. Shahid @ Bhoora etc 9 of 26 Section 313 Cr.P.C. All accused persons pleaded their innocence and stated as under: A)Accused Shahid @ Bhura deposed that he had refused to join the TIP as he had already been shown to the witnesses at PS Kalyanpuri. He is innocent and has been falsely implicated in this case at the instance of SI Mamman Khan in collusion with SI Ajay Yadav. He was lifted from Subzi Mandi Azadpur on 08.07.2007 when he was taking vegetables/fruits to Mira Pur, Distt. Muzaffar Nagar, UP to sell the same there. He was kept in a flat at Khichripur where he was given beatings by SI Ajay Yadav, SI Mamman Khan and other police officials. His signatures were obtained on some blank papers which were later on converted into the documents of this case. He opted to lead defence evidence.
B)Accused Lalla @ Rakesh stated that he refused to join TIP as he had already been shown to the witnesses at PS Kalyanpuri and his photograph as well as photograph of Shahid were also taken by the police officials which were pasted at PS Kalyanpuri. He was lifted from his house on 11.08.2007 by SI Mamman Khan and two other police officials and was kept in a flat at Khichripur where three boys were already kept. He was given beatings by the police officials and his signatures were obtained on 1012 blank papers and later on SI Maman Khan in collusion with SI Ajay Yadav, falsely implicated him in the present case. They were lifted from their house, beaten up by police officials and have been falsely implicated in the present case in collusion with SI Ajay Kumar Yadav. All four accused persons opted to FIR No. 286/07 State Vs. Shahid @ Bhoora etc 10 of 26 lead defence evidence.
C)Accused Sunil s/o Gaya Prasad stated that on 13.07.2007, he was lifted from his house by SI Ajay Yadav, Om Kumar and one other police official and he was taken at PS Kalyanpuri where his photographs were taken and then he was taken to Police Chowki Khichripur where his signatures were forcibly obtained on 1012 blank papers which were later on converted into the documents of the present case. They also took his photographs and pasted there at PS Kalyanpuri as well as the Police Chowki, Khichripur with the photographs of two other persons. He was then taken to a flat at Khichripur where he was given beatings by the police officials and on 14.07.2007 he was produced before the Court along with three other persons who were not known to him.
D)Accused Sunil @ Sukhariya s/o Rajender also taken almost same defence and stated that he was lifted from his house on 13.07.2007 when he was leaving his house for his work by SI Mamman Khan along with 23 police officials and he was taken to PS Preet Vihar where his photo was taken by the police officials. His signatures were also obtained forcibly on 1012 papers by the police which were later on converted into the documents of the present case. Thereafter, they took him in a flat at Khichripur where he was given beatings by SI Ajay Yadav, Om Kumar, Pop Singh at the instance of Mamman Khan and on 14.07.2007, he along with three other persons were produced before the Court. He refused to join the TIP as he was already shown to the witnesses at PS Vivek Vihar and his photo was also pasted at FIR No. 286/07 State Vs. Shahid @ Bhoora etc 11 of 26 the PS.
6. All four accused opted to lead defence evidence. DW1 Sh. Puneet deposed that in the year 2007 he was working as housekeeper on contract basis. His brother used to run a shop in 2007 where he also used to sit along with him. SI Mamman Khan used to come to the STD shop of his brother and used to threaten his brother stating that he will implicate his brother in a false case on false allegation that his brother was doing the business of sale/purchase of stolen mobile phones.
7. I have heard the arguments on behalf of Ld. Addl. PP for the State as well as Ld. Defence counsel and gone through the record.
8. Ld. Addl. PP for the State argued that although, PW1 Azad, PW2 Babita and PW3 Smt. Rinku have not fully supported the prosecution case yet the public witness ie PW8 Smt. Vibha has fully supported the prosecution case and identified the accused persons. It is further argued that the TIP of the recovered articles was conducted in which respective witnesses have identified the recovered robbed articles. Thus, it is prayed that accused persons may be convicted for the offences they are charge sheeted.
9. Ld. Defence Counsel, on the other hand, argued that the prosecution has cited four public witnesses ie PW1, PW2, PW3 and PW8 out of which PW1, PW2 and PW3 are family members while PW8 stated to be tenant who used to reside on rent in the house of complainant during the relevant period. None of the family members have supported the prosecution case on the point of identification and in regard to recovered robbed articles there are several material contradictions and difference in FIR No. 286/07 State Vs. Shahid @ Bhoora etc 12 of 26 the nature of robbed and what was recovered. There are several material contradictions between the testimony of the family members and the tenant. Thus, it is prayed that the accused persons may be acquitted of charges leveled against them.
DISCUSSION ON THE POINT OF IDENTIFICATION OF ACCUSED PERSONS
10. As per prosecution case, on 09.07.2007, all four accused persons on the point of knife committed robbery in the house of complainant Azad Singh. They robbed complainant Azad Singh, his wife Babita, his sister inlaw Rinku and their tenant Vibha. As per prosecution case, all the accused persons had fled from the spot after committing robbery along with robbed articles and on dated 13.07.2007, all the accused persons were apprehended along with the robbed articles of this case. Now let us see whether the prosecution has successfully established these charges against the accused persons or not.
11. As far as the identification of the accused persons are concerned, prosecution has cited all aforesaid victims as witnesses/material witnesses to the present case. PW Azad, his wife Babita and his sister inlaw (bhabhi) Rinku have been examined as PW1, PW2 and PW3 respectively while their tenant Smt. Vibha has been examined as PW8.
12. PW1, PW2 and PW3 who are the family members have supported the prosecution case only to the extent that the incident of robbery had taken place with them, however, as far as identification of the accused is concerned, they have not supported the prosecution case. These witnesses have specially stated during their evidence that the accused persons are not the same persons who committed robbery in their house.
FIR No. 286/07 State Vs. Shahid @ Bhoora etc 13 of 26 PW2 and PW3 were cross examined by Ld. Addl PP but of no avail. PW2 and PW3 categorically stated during their examination in chief that the robbers were in muffled face, therefore, they cannot identify those robbers. As far as the testimony of PW1, is concerned, it is clear from his examination in chief that he also categorically stated in his examination in chief that the accused persons are not the same persons who committed robbery with them. After about six months, his further examination was recorded wherein he improved his earlier version and stated that he had seen the accused persons and identified them before the IO on 30.08.2007, when he had come to court for making inquiry about the progress of his case. However, during cross examination which was conducted on the same day, PW1 again changed his version and stated that accused persons are not the same persons who had committed robbery in his house. He also denied that he had identified the accused persons in the court on 30.08.2007. Thus, it is clear from these facts and circumstances that none of these witnesses have identified the accused persons. Even otherwise, there was no occasion for PW1, PW2 and PW3 to identify the robbers as even as per prosecution case, all the offenders were in muffled face and therefore, there was no occasion for any of the victims to see the faces of the robbers during the incident.
13. Furthermore, it is clear from the record that since beginning the prosecution case has been that at the time of incident, all the robbers were in muffled face, thus, under these circumstances the prosecution ought to have specified as to how the witnesses/victims were in position to identify the offenders. Since, they never saw the faces of the offenders, therefore, it cannot be assumed that they could have identified FIR No. 286/07 State Vs. Shahid @ Bhoora etc 14 of 26 the accused persons even during TIP or during their evidence before the Court. It is also not the case of the prosecution that any of the witnesses had observed some peculiarity of the accused persons which was sufficient for further identification of the accused persons. All the public witnesses stated that the robbers were in muffled faces, thus, TIP as well as Court identification is of no help as witnesses cannot identify the accused persons as they had never seen the faces of accused persons at the time of incident.
14. The prosecution has examined one another eye witness PW8 Vibha, tenant of the complainant and as per prosecution case at the time of offence, she was living on the second floor of the house of the complainant. As per prosecution case, all the four accused persons were in muffled face when they had committed robbery with PW8. Thus, as per prosecution case, even PW8 had not seen the face of any of the offenders and thus, she also did not specify any peculiarity or special identification mark about the accused persons, hence, even she could not have identified any of the accused persons. Before analysing her testimony further, it is necessary to firstly deal with the arguments vehemently advanced by Ld. Amicus Curiae for accused Shahid. Ld. Amicus Curiae submitted that it is highly doubtful that the lady who was examined as PW8 was the same person with whom the alleged incident of robbery had taken place. She submitted that on three occasions, the victim Vibha was required to sign certain documents and on each occasion she has put different signatures which creates big doubt about the identification done by the victim Vibha. She submitted that the signatures appended by PW8 Vibha during TIP of the case property and FIR No. 286/07 State Vs. Shahid @ Bhoora etc 15 of 26 in the superdaginama, are altogether different. She submitted that the way, the signatures were put on the TIP, shows that the witness was not a fully literate person while the signature on the superdaginama appears to be of a fully literate and confident person. It is submitted that PW8 did not sign her statement and she only put her thumb impression on her testimony before the Court. It is also submitted that the summons were issued several times to this witness but every time it was reported that she is not residing at the given address and one day she was served at a new address and it is not clear from the record as to how that address came on record or how it was ascertained that same person is residing at the address upon which she was served. Besides that there are several material contradictions in her testimony which shows that the person examined by the prosecution as PW8 had never lived at the place of incident. It is submitted that she gave altogether different version regarding complainant's family as well as about the tenanted premises. It is submitted that during cross examination, PW8 stated that she was living at 1st floor and as per prosecution she was living at 2 nd floor and at the time of incident she was having two daughters while during her cross examination she stated that she was having only three sons.
15. Thus, under these circumstances, it is to be firstly seen whether PW8 examined by the prosecution is the same person with whom the incident of robbery had taken place. It is clear from the record that the victim Vibha had participated in the TIP proceedings of the case property and she had also furnished the superdaginama while receiving the articles and her signature on both the documents are altogether different. It is also clear from the record that witness Vibha who was examined as PW8 FIR No. 286/07 State Vs. Shahid @ Bhoora etc 16 of 26 did not put her signatures on her testimony and had appended her thumb impression. Besides that it is clear from her cross examination that she stated in her cross examination that she is an illiterate person. Thus, all these facts and circumstances clearly raise big doubt whether Ms Vibha who had participated in the TIP proceedings and was examined as PW8 before the Court is the same person with whom the incident of robbery had taken place. There are other reasons to have this doubt as during cross examination she stated that she was living on 1 st floor with her husband and three sons while as per prosecution case as well as in view of the statement u/s 161 Cr.P.C of PW3 Ex.PW3/A, Ms. Vibha was living on 2nd floor of the house. It is also the case of the prosecution that Ms. Vibha was having two daughters while in her cross examination, she stated that she had three sons. Thus, under these circumstances, it would not be safe to rely upon the testimony of PW8.
16. Even otherwise, it is clear from the record that as per prosecution case, all the accused persons were in muffled face. PW8 also stated, in her examination in chief, that all the four robbers were in muffled face (muh pe patti bandh rakhi thi) yet in the same breath, she identified all the four accused persons present in the court and stated that those were the same who had committed robber without explaining as to how she was able to identify them when she had not seen their faces at the time of incident. On one hand PW8 stated that the offenders had muffled their faces with handkerchiefs and simultaneously in the same breath PW8 stated that one of the accused persons was having a cut mark on his upper lip and his face had spot (daag), is also unbelievable. It seems from her testimony that she identified the accused persons as the FIR No. 286/07 State Vs. Shahid @ Bhoora etc 17 of 26 robbers as they were present in the dock. Thus, it is clear that the accused persons were neither previously known to PW8 nor she had seen their faces before and identified them for the first time in the court that too for the reasons as they were present before the court as accused in this case. Ld. Amicus Curiae had cited the judgment of Hon'ble Supreme Court reported as 1994 Supreme Court Case (Cri. 1751) titled as Tankhayyan vs State of Kerala and in this case, the Hon'ble Supreme Court has laid down that no reliance can be placed on the identification of the accused which was done for the first time in the Court, if the accused was not previously known to the witness.
17. It is well settled law that the conviction can be held on the solitary and uncorroborated testimony of a witness in case the testimony does not suffer from material contradiction/variation. If prosecution case rests on the testimony of one single witness and whose testimony suffers from material contradiction/variation then it is not safe to rely upon such a testimony. In this regard, this court is supported by the case law reported as 1995 SCC(Cri) 160 and titled as Jagdish Prasad Vs State of Madhya Pradesh, the Hon'ble Supreme Court has referred the decision made in the earlier case reported as AIR 1957 SC 614 and titled as Vadivelu Thevar v. State of Madras, and discussed the circumstances under which the testimony of a witness requires corroboration. The relevant para of this judgment is reproduced as under: "As a general rule, a Court can and may act on the testimony of a single witness though uncorroborated provided the testimony, of that single witness is found out entirely reliable. In that case, there will be no legal impediment for recording a conviction. But if the evidence is open to doubt or suspicion, the court will require sufficient FIR No. 286/07 State Vs. Shahid @ Bhoora etc 18 of 26 corroboration. In this connection, reference may be made to a decision of this Court in Vadivelu Thevar v. state of Madras, AIR 1957 SC 614 wherein this court has classified the testimony of a witness into three categories viz. (1) wholly reliable (2) wholly unreliable and (3) neither wholly reliable or wholly unreliable and observed that though in the first two categories of classification, there may not be any difficulty in coming to a conclusion either accepting or rejecting the testimony but it is in the third category of cases that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony either direct or circumstantial."
18. It has been held by Hon'ble Supreme Court in the case reported as AIR 2009 SC 331 Arumugam v. State that the testimony of a witness is not reliable if there are material contradiction in the testimony. Relevant para of this judgment reads as under: "12. To the same effect is the decision in State of Punjab v. Jagir Singh (AIR 1973 SC 2407), Lehna v. State of Haryana (2002 (3) SCC 76) and Gangadhar Behera and Ors. v. State of Orissa (2002 (8) SCC 381). As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. (AIR 1981 SC 1390), normal discrepancies in evidence are those which are due to normal errors of observation normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi and Ors. v. State of Bihar etc. (JT 2002 (4) SC 186)."
DISCUSSION ON THE POINT OF RECOVERY OF ROBBED ARTICLES
19. Before making any discussion, it is necessary to specify as to what was robbed and what was recovered as per prosecution case and to analyze this, the following table has been made in view of the statements made by the complaint and other victims/witnesses during investigation: FIR No. 286/07 State Vs. Shahid @ Bhoora etc 19 of 26 Robbed Articles robbed person/victim Sh. Azad Singh Gold Chain, Gold Ring and Titan watch.
Smt. Babita w/o Gold Chain, Tops, Tata mobile
Azad Singh
Smt. Rinku Chain, ear rings and anklet
Smt. Vibha (tenant) Her mangalsutra, ear rings and silver
anklets of her two daughters and
Rs.2000/ cash.
Accused from Description of articles recovered
whose possession
or instance articles
recovered
Shahid Gold chain of rope design, locket
and one gents ring
Sunil @ Sukharia One pair tops
Lalla @ Rakesh Gold chain
Sunil s/o Gaya Three lockets, one locket and one
Prasad
artificial jhumka.
20. After recovery, the TIP of all the recovered articles was conducted and all the said witnesses participated in TIP proceedings except witness Smt. Babita and as per prosecution case they identified all the articles. It is clear from the aforesaid two tables that articles which were complained to have been robbed and articles which were allegedly recovered from the possession of the accused persons, do not appear to be same. As per prosecution case, all the articles allegedly recovered from the accused persons, are the robbed articles but if the articles mentioned in FIR No. 286/07 State Vs. Shahid @ Bhoora etc 20 of 26 both the tables are compared it would make amply clear that some of the articles which were claimed to have been robbed articles were not even complained to have been robbed and one thing is more surprising that all these articles were shown to the aforesaid three witnesses and they had identified all the articles claiming the same to be their articles. It is clear from the statement of PW8 Smt. Vibha which was recorded during investigation that she had stated that her mangalsutra, Tops and silver anklets of her two daughters were robbed while during TIP, she identified four golden lockets though she had not complained the same to be robbed from her. During her evidence, PW8 stated that police had got recovered her mangalsutra which was taken on superdari vide superdaginama Ex.PW8/A. It is clear from all the seizure memos that no mangalsutra was recovered from any of the accused. It is further clear from the superdaginama Ex.PW8/A that she furnished superdaginama for two gold mangalsutra, two gold ear rings and two silver payjebs though no such articles were recovered during investigation or identified by her during TIP proceedings.
21. Furthermore, complainant/PW1 Azad had complained that his gold chain, ring and Titan watch were robbed, however, during TIP, he also identified, one golden colour chain, ear ring and one locket thus, he claimed one additional article ie locket to be his locket though as per his complaint, he did not complain robbery of any such locket.
22. As per TIP proceedings (PW16/A), two golden colour chains were produced for TIP and one of the gold chain was stated to be of rope design though none of the witnesses claimed in their statements given to FIR No. 286/07 State Vs. Shahid @ Bhoora etc 21 of 26 the police as well as before the Court that their chain was of rope design.
23. The only three witnesses ie PW1, PW3 and PW8 participated in the TIP proceedings of the case property and one of the witnesses PW2 Smt. Babita did not participate. As per prosecution case, three gold chains were robbed along with three pairs of tops and out of which two gold chains and one pair of tops along with one another tops were recovered, however, the TIP of the robbed articles got conducted only from three witnesses/victims. Thus, entire TIP proceedings becomes doubtful as it has not been explained by the prosecution as to why witness Smt. Babita did not participate in the TIP proceedings of the case property though her gold chains and tops were also complained to have been robbed and IO was presumably not aware to whom the recovered articles actually belong. The articles which were produced for TIP were identified by all the three witnesses who came to participate in TIP proceedings and no article was left to be identified by witness Smt. Babita. This also shows that the case property was either not sealed properly or prior to sealing, it was shown to the witnesses only therefore, IO was aware that only three witnesses would be sufficient for identification of the case property and in case, it was not the position, IO must have produced all the witnesses for identification of the robbed articles as neither he nor the witnesses were aware as to which articles belong to which witness. It is not the case that the rest of the three witnesses did not identify some of the articles stating that those do not belong to them or other witness who was not present. Besides, it is also surprising as to how IO was aware as to which articles was to be identified by which witness as it is clear from the TIP proceedings that all the articles were not produced before all three FIR No. 286/07 State Vs. Shahid @ Bhoora etc 22 of 26 witnesses and they were only shown to a particular articles. IO is not supposed to know which articles belong to which witness and thus, he ought to have got conducted the TIP of all the articles from all three witnesses, however, some particular articles were shown to a particular witness which also creates heavy doubt on the entire TIP proceedings.
24. Thus, in view of these discussions, it is held that it is highly doubtful that the recovered articles are the same articles which were robbed and secondly the authenticity of the TIP proceedings is also doubtful in view of the discussions held in preceding paras.
PROCEEDINGS REGARDING RECOVERY OF ROBBED ARTICLES AND ARREST OF THE ACCUSED PERSONS.
25. As per prosecution case, on 13.07.2007, all the accused persons were apprehended together from the place ie Sulabh Sauchalaya, LBS Road, on the basis of a secret information which was given to SI Ajay Kumar. There are several material infirmities as well as contradictions in this regard. As per prosecution case, the accused persons were apprehended at about 7.40 pm on 13.07.2007 and thereafter, the robbed articles of the present case were also recovered from the accused persons. Thus, as per prosecution case, the proceedings in regard to the apprehension and arrest of the accused persons as well as in regard to seizure of recovered articles were conducted on 13.07.2007 and in this regard DD No.6B was made at 12.25 am meaning thereby the DD was made on 14.07.2007, however, on the disclosure statement of accused persons, accused Shahid Bhura, the date of DD is 13.07.2007. The kalandra was prepared prior to DD entry, however, it is clear from kalandra Ex.PW5/A that two dates have been mentioned on the FIR No. 286/07 State Vs. Shahid @ Bhoora etc 23 of 26 kalandra. Firstly, after kalandara, the IO had signed in the date of 14.07.2007 and in the subsequent part of kalandara after name of witness, he has mentioned the date as 13.07.2007. Besides, as per prosecution case, all the disclosure statements recorded by IO SI Ajay Kumar, however, it is clear from the disclosure statements Ex.PW9/A, Ex.PW9/B, Ex.PW9/C and Ex.PW9/D that the disclosure statement of accused Shahid is in different hand writing. PW9, in his further cross examination, stated that the disclosure statement of accused Shahid was recorded by SI Ajay Kumar while other disclosure statement was recorded by HC Sahender. There are further contradictions regarding the recovery of jewelery articles as well as the weapons ie four chhuras at the instance of accused Shahid. The recovery witnesses have given different version about this recovery. PW12 stated in his cross examination that the pit from where the weapons and jewelery articles were recovered, were dug by screw driver which was made available by raiding team member, however, PW14 stated that accused Shahid had removed the sand from pit by his own hands while IO PW15 stated that it was dug by the raiding team members with the help of a wooden stick. There is also different version regarding measurement of the weapon, PW12 and PW14 stated that it was a plastic scale which was used for measuring the knife, recovered from the pit.
26. Above all, there is one very material aspect in this matter which raises very serious doubt about the arrest as well as recovery of the accused persons as claimed by the prosecution. It is clear from the discussion made in the preceding paras that firstly the prosecution has failed to connect the accused with the offence of robbery and as far as the FIR No. 286/07 State Vs. Shahid @ Bhoora etc 24 of 26 recovery of the robbed articles from the possession of the accused persons are concerned, same can also not be relied upon for the discussions made in the preceding paras as neither the articles which have been recovered have been established that those articles are robbed articles as the articles which have been recovered are different articels from the robbed articles and the number of articles which are allegedly recovered are much more than the robbed articles. Further, the identification done by the witnesses regarding the recovered articles cannot be relied as they have also identified some of the articles which were not even complained to have been robbed. Thus, the prosecution case, that the accused persons were apprehended and the articles of the present case were recovered from their possession and also that accused made disclosures to accept that the articles which have been recovered from their possession are the same which were robbed by them in this case, cannot be believed solely on the ground that the alleged articles have not been found to be robbed property.
27. Besides that it is clear that the accused persons were apprehended from a public place and the recovery at the instance of accused Shahid was also taken place from a public place yet it seems that no real efforts were made by the IO to join the public witnesses to either apprehension or recovery proceedings. The testimony of the police officials can also be relied but in the instant case there are several material contradictions and flaws and under these circumstances the prosecution case regarding apprehension and recovery of the accused persons cannot be relied.
28. Since the prosecution has failed to connect the recovered articles with FIR No. 286/07 State Vs. Shahid @ Bhoora etc 25 of 26 the robbed articles, therefore, accused persons cannot be held guilty for the offence u/s 411 IPC. Furthermore, as discussed above, there are several factors which raises a serious doubt regarding recovery as well as the seizure and sealing of the articles got allegedly recovered from the possession of the accused persons.
29. Thus, in view of the aforesaid discussions, it is held that the prosecution has failed to prove its case against the accused beyond reasonable doubtful. Accordingly, all accused persons are acquitted of all charges Digitally signed leveled against them. AJAY by AJAY GUPTA Location: Delhi GUPTA Date: 2018.05.07 16:42:17 +0530 (Ajay Gupta) ASJ02/ Special Judge(NDPS) KKD/East/Delhi Announced in open court on 07.05.2018 FIR No. 286/07 State Vs. Shahid @ Bhoora etc 26 of 26