Delhi District Court
State vs . Muzmmel Ahmad @ Musa on 3 June, 2023
IN THE COURT OF SH. JITENDER: METROPOITAN
MAGISTRATE01 : NORTH : ROHINI COURTS : DELHI.
STATE VS. MUZMMEL AHMAD @ MUSA
FIR Number : 1038/2015
Under Section : 392/394/34 IPC
Police Station : Narela
JUDGMENT
a) Registration no. of case : 5293135/2016
b) Name & address of the : Shahid
complainant S/o Ahmad Ali
R/o H. No. 260, Mir Vihar,
Madan Pur Dabas, Delhi
c) Name & address of : Muzmmel Ahmad @ Musa
accused S/o Khalil Ahmad
R/o H. No. 64, Pocket5, Sector
A6, Narela, Delhi
d) Date of Commission of : 17.08.2015
offence
e) Offence complained of : 392/394/34 IPC
f) Plea of the accused : Pleaded not guilty.
FIR No. 1038/2015 PS Narela State Vs. Muzmmel Ahmad @ Musa Page 1 of 19
g) Final Order : Convicted
Date of Institution : 16.11.2015
Judgment Pronounced on : 03.06.2023
JUDGMENT
Brief facts:
1. The case of the prosecution is that on 17/08/2015 at about 10:30 PM at Smriti Van Road, Near Vardhman Mall, Narela, Delhi, (hereinafter the "spot" or "the place of accident") accused along with his associates (since not arrested) in furtherance of their common intention voluntarily caused hurt to complainant in committing robbery and committed robbery of Micromax mobile phone belonging to Neha and one bag containing three mobile phone, cash amount of Rs. 1500/ Aadhar card, PAN card, ID card and two debit card belonging to complainant and thereby committed the offence punishable U/s 392/394/34 Indian Penal Code. The present FIR No. 1038/2015, was registered under section 392/394/34 Indian Penal Code (hereinafter "IPC") on the complaint of Shahid.
2. On the basis of the investigation carried out by the police, chargesheet was filed under section 173 Cr.P.C in the court on 16/11/2015 and chargesheet and other relevant document were FIR No. 1038/2015 PS Narela State Vs. Muzmmel Ahmad @ Musa Page 2 of 19 supplied to the accused in compliance of section 207 Cr.P.C to the satisfaction of the accused.
3. Charge for committing the offence punishable under section 392/394/34 IPC was framed upon the accused on 11/12/2015 to which accused persons pleaded not guilty and claimed trial. Thereafter, the matter was fixed for PE.
Prosecution Evidence
4. To prove its case, prosecution has examined as many as 06 witnesses. PW1 Shahid and PW2 Shabbir have been projected as eyewitnesses of the incident. All the witnesses have been duly examined and cross examined.
5. Prosecution evidence was closed on 27/02/2023 and matter was listed for statement of accused U/S 313 Cr.P.C and same was recorded on 10/03/2023.
Statement of Accused
6. After recording the prosecution evidence all the incriminating facts and evidence were put before the accused and he pleaded that he is innocent. He submitted that, I was not involved in the case. I was passing the other spot when I was falsely implicated FIR No. 1038/2015 PS Narela State Vs. Muzmmel Ahmad @ Musa Page 3 of 19 in the present case. He further stated that, all the witnesses are the interested witness. Lastly, he said that he does not want to lead any evidence.
Issues to be decided
7. Before proceeding further, as per mandate laid down under Section 354 (1) (b) Cr.PC following are the points of determination which are necessary to consider in order to arrive at a conclusion:
(1). Whether accused Muzamil Ahmad has committed the offence voluntarily cause or attempt to cause any person wrongful restraint in order to commit theft under section 392 IPC ?
(1). Whether accused Muzamil Ahmad has committed the offence voluntarily cause hurt while committing robbery to any person and commit the offence punishable under section 394 IPC ?
Observation
8. "Whether accused Muzammel Ahmad has committed the offence voluntarily cause or attempt to cause any person wrongful restraint in order to commit theft under section 392 IPC ?"
FIR No. 1038/2015 PS Narela State Vs. Muzmmel Ahmad @ Musa Page 4 of 19Let us peruse the provision of Section 392 IPC, which is as under : Section 392. Punishment for robbery Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
Section 390: Robbery In all robbery there is either theft or extortion. When theft is robbery Theft is "robbery"
if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
Explanation The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
Essentials of Robbery:
FIR No. 1038/2015 PS Narela State Vs. Muzmmel Ahmad @ Musa Page 5 of 19(1) There must have been commission of theft as defined in Section 378. (2) The act of theft must have been committed by the offender causing or attempting to cause fear of death, hurt or wrongful restraint or fear of instant death or instant hurt or instant wrongful restraint.
9. "Whether accused Muzammel Ahmad has committed the offence voluntarily cause hurt while committing robbery to any person and commit the offence punishable under section 394 IPC?"
Let us peruse the provision of 394 IPC, which is as under : Section 394: Voluntarily causing hurt in committing robbery: If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
FINDINGS
10. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and the benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. In the case titled as Dr. S. L. Goswami vs State of FIR No. 1038/2015 PS Narela State Vs. Muzmmel Ahmad @ Musa Page 6 of 19 Madhya Pradesh, 1972 Supreme Court Cases (Cri) 258, Hon'ble Apex Court has held that:
(i) The onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does is shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less.
(ii) The standard of proof to prove a defence plea is not the same as that which rests upon the prosecution.
Where the onus shifts to the accused, and the evidence on his behalf probabilizes the plea he will be entitled to the benefit of reasonable doubt".
Establishment of identity of accused persons
11. The case of the prosecution is that on 17/08/2015 at about 10:30 PM at Smriti Van Road, Near Vardhman Mall, Narela, Delhi, accused along with his associates in furtherance of their common intention voluntarily caused hurt to complainant in committing robbery and committed robbery of Micromax mobile phone belonging to Neha and one bag containing three mobile phone, cash amount of Rs. 1500/ Aadhar card, PAN card, ID card and two debit card belonging to complainant and thereby committed the offence punishable U/s 392/394/34 Indian Penal Code. For the purpose to establish the identity of the accused, prosecution has examined PW1 the complainant and PW2, who was along with the complainant at the time of incident. PW1 stated that, "at about 10:30 FIR No. 1038/2015 PS Narela State Vs. Muzmmel Ahmad @ Musa Page 7 of 19 PM, when we reached at Smriti Van Road, near Vardhman mall, Narela, Shabbir stopped the Scooty as Neha wanted to attend the call of nature and she went for the same Neha was at some distance from us and we heard some noise all of a sudden. At this, I reached there and I found accused Muzamil Ahmad (present in the court today and correctly identified the witness) along with his two friends were snatching articles from Naha when I tried to intervene, Muzamil along with his other two friends started giving beating to me. Thereafter, two of them caught hold of me and they snatched my black colour Sony which was containing two lenovo mobile phone, one Samsung phone, one micromax phone and my other documents. Accused persons also snatched my purse which contained my two debit cards of ICICI and Indusind, cash amount of ₹ 1500/, my Aadhar card, voter ID card etc. Thereafter, accused person tried to run away from there and at that time other persons of locality also came and we started chasing those three boys. After some distance, I caught hold of accused Muzami Ahmad, while his other two friends managed to run away from there". PW2 Shabbir Khan deposed that, "at about 10:30 PM, when we reached at Smriti Van Road, near Vardhman mall, Narela, I stopped the Scooty as Neha wanted to attend the call of nature and she went for the same. Neha was at some distance from us and we heard some noise all of a sudden. At this, Shahid reached there and after parking the scooter, I reached FIR No. 1038/2015 PS Narela State Vs. Muzmmel Ahmad @ Musa Page 8 of 19 there. I found accused Muzamil Ahmad (present in the court today and correctly identified the witness) along with his two friends were snatching articles from Naha and Shahid. Thereafter, accused person tried to run away from there and at that time other persons of locality also came and we started chasing those three boys. After chasing some distance, I and Shahid caught hold of accused Muzami Ahmad, while his other two friends managed to run away from there". After considering the statements of both the eye witnesses, this court arrived at the conclusion that, the prosecution has been successfully establish the identity of the accused persons, as both the prosecution witnesses deposed on the similar line that, on 17/08/2015 at about 10:30 PM when they reached at the spot along with their friend Neha, the accused Muzamil Ahamd snatched the bag from the complainant along with his two associated. While the accused persons tried to run away from the spot, the accused Muzamil Ahmad was apprehended by the complainant while the two other were escaped. This court finds no contradiction in the testimonies of these two witnesses which shatter the case of the prosecution and also arrived at the conclusion that the prosecution has successfully establish the identity of the accused.
Interested witness:
12. The accused has taken the defense that, all the eye FIR No. 1038/2015 PS Narela State Vs. Muzmmel Ahmad @ Musa Page 9 of 19 witnesses are interested witness, as one of them is the complainant himself and other one is friend of him. As regards the contention that all the eyewitnesses are close friends/relatives of the complainant/deceased, it is by now wellsettled that a related witness cannot be said to be an "interested" witness merely by virtue of being a relative of the victim. A witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused. However, the Hon'ble Supreme Court has held in Rajesh Yadav and Others etc. vs. State of U.P. in Criminal Appeal No. 339340of 2014 decided on 04/02/2022, that a related witness cannot be termed as an interested witness per se. One has to see the place of occurrence along with other circumstances. A related witness can also be a natural witness. If an offence is committed within the precincts of the deceased, the presence of his family members cannot be ruled out, as they assume the position of natural witnesses. When their evidence is clear, cogent and withstood the rigor of cross examination, it becomes sterling, not requiring further corroboration. A related witness would become an interested witness, only when he is desirous of implicating the accused in rendering a conviction, on FIR No. 1038/2015 PS Narela State Vs. Muzmmel Ahmad @ Musa Page 10 of 19 purpose. When the court is convinced with the quality of the evidence produced, notwithstanding the classification as relative or interested witness, it becomes the best evidence. Such testimony being natural, adding to the degree of probability, the court has to make reliance upon it in proving a fact.
The aforesaid position of law has been well laid down in Bhaskarrao v. State of Maharashtra, (2018) 6 SCC 591:
"32. Coming back to the appreciation of the evidence at hand, at the outset, our attention is drawn to the fact that the witnesses were interrelated, and this Court should be cautious in accepting their statements. It would be beneficial to recapitulate the law concerning the appreciation of evidence of related witness. In Dalip Singh v. State of Punjab, 1954 SCR 145: AIR 1953 SC 364: 1953 Cri LJ 1465], Vivian Bose, J. for the Bench observed the law as under: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such FIR No. 1038/2015 PS Narela State Vs. Muzmmel Ahmad @ Musa Page 11 of 19 general rule. Each case must be limited to and be governed by its own facts."
13. This court comes to the conclusion that PW1 is the complainant and PW2 is the friend of the complainant but their evidence cannot be discarded solely on the ground of being the interested witness. From the above cited judgments, this court can form the opinion that a witness who is the relative/friend of the complainant cannot be indeed interested or partisan witness because court finds no reason as to why these eyewitnesses falsely implicate an innocent person when they did not derive any benefit from getting him punished by the court. Further, PW1 and PW2 support the case of the prosecution throughout the trial and these prosecution witnesses were very well established the identity of the accused persons as well. Moreover, no contradiction or irregularity finds in the testimonies of these witnesses of the prosecution. Finally, this court finds no reason to discard the testimonies of PW1 and PW2 solely on the ground that, they are the interested witnesses.
Defence as to no other independent eyewitness
14. The accused has taken the defense that, as per the testimonies of the eyewitness and the IO, there were many persons present at the spot but IO has not recorded the statement of any of the person present at the spot nor any of the person cited as the FIR No. 1038/2015 PS Narela State Vs. Muzmmel Ahmad @ Musa Page 12 of 19 prosecution witness. Moreover, it has roll out in the cross examination of the PW5/IO ASI Rajender that, "no independent public person was present at the spot when I reached the spot. I stopped some passerby and requested them to join the investigation, however, none of them join the same and they left the spot without telling their names and addresses". Further, this fact was also recited by the PW6"no independent public person was present at the spot when I reached the spot. IO stopped some passerby and requested them to join the investigation, however, none of them join the same and they left the spot without telling their names and addresses"
However, In State of State of A.P. vs. S.Rayappa & Ors. (2006) (4) SCC 512, the Supreme Court has rejected a similar argument of interested witnesses being produced and no independent witness being examined by the prosecution, by holding as under:
"7. On the contrary it has now almost become a fashion that the public is reluctant to appear and depose before the Court especially in criminal case because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are a harassed lot. They are being threatened, intimidated and at the top of all they are subjected to lengthy crossexamination. In such a situation, the only natural witness available to the prosecution would be the relative witness. The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative FIR No. 1038/2015 PS Narela State Vs. Muzmmel Ahmad @ Musa Page 13 of 19 witnesses should be examined cautiously."
15. It is a well settled proposition that nonjoining of public witness shrouds doubt over the fairness of the investigation by police. This lapse on the part of prosecution casts serious doubt as to whether any sincere efforts were made by the prosecution to join public witnesses in the proceedings. This court observed from the above testimonies of PW5 and PW6 that, despite the sincere effort of the IO, no public person join the investigation. Moreover, this court concurred with the observation made by the Hon'ble Apex court in State of State of A.P. vs. S.Rayappa & Ors. (2006) (4) SCC 512, that, public persons are very reluctant to join the investigation and in absence of any independent witness, prosecution need to rely upon the witnesses who are relative or friend of the victim.
Site Plan and Faulty Investigation:
16. The site plan is a vital part of the investigation and that it should give a clear description of the spot to which it belongs. Site plan is not a mere formality, but, it is an essential feature in order to reach the firm conclusion by the court in order to ascertain whether the offence has been committed by the accused or not. The site plan must disclose the relevant thing and it must corelate/corroborate with other evidence and the testimonies of the witnesses. In the FIR No. 1038/2015 PS Narela State Vs. Muzmmel Ahmad @ Musa Page 14 of 19 present case PW5 IO/ASI Rajender stated that, "I prepared the site plan at the instance of the complainant, the same is Ex. PW5/B bearing my signature at point A". This fact also affirm by the PW6 and he stated that, "IO prepared the site plan". However, perusal of the site plan unveil that this vital piece of evidence was not signed by the complainant at whose instance same was prepared or by any other public persons.
17. As a general principle, it can be stated that error, illegality or defect in investigation cannot have any impact unless miscarriage of justice is brought about or serious prejudice is caused to the accused. (Union of India vs. Prakash P. Hinduja AIR 2003 SC 2612). If the prosecution case is established by the evidence adduced, any failure or omission on the part of the I.O cannot render the case of the prosecution doubtful. (Amar Singh vs. Balwinder Singh, AIR 2003 SC 1164, Sambu Das vs. State of Assam AIR 2010 SC 3300). If direct evidence is credible, failure, defect or negligence in investigation cannot adversely affect the prosecution case, though the court should be circumspect in evaluating the evidence (Ram Bihari Yadav vs. State of Bihar AIR 1998 SC 1850, Paras Yadav vs. State of Bihar AIR 1999 SC 644, Dhanraj Singh vs. State of Punjab AIR 2004 SC 1920, Ram Bali vs. State of U.P. AIR 2004 SC 2329).
FIR No. 1038/2015 PS Narela State Vs. Muzmmel Ahmad @ Musa Page 15 of 1918. As far as the defective and illegal investigation is concerned, Apex Court held that If investigation is illegal or suspicious, the rest of the evidence must be scrutinized independent of the impact of the faulty investigation; otherwise criminal trial will descend to the I.O ruling the roost. Yet if the court is convinced that the evidence of eyewitnesses is true, it is free to act upon such evidence though the role of the I.O in the case is suspicious. (Abu Thakir, AIR 2010 SC 2119). An accused cannot be acquitted on the sole ground of defective investigation; to do so would be playing into the hands of the I.O whose investigation was defective by design. (Dhanaj Singh vs. State of Punjab AIR 2004 SC 1920). Mere defective investigation cannot vitiate the trial. (Paramjit Singh vs. State of Punjab AIR 2008 SC 441).
19. The fact that the site plan was not signed by any witness is lapse on the part of the investigating agency. However, this court concurred with the above cited judgment and arrived at the conclusion that lapses in the investigation cannot give any undue advantage to the accused and cannot caste any doubt upon the case of the prosecution.
Circumstantial evidence FIR No. 1038/2015 PS Narela State Vs. Muzmmel Ahmad @ Musa Page 16 of 19
20. Circumstantial evidence is the most important aspect to decide the liability of the accused in any criminal trial. Circumstantial evidence is indirect evidence that does not, on its face, prove a fact in issue but gives rise to a logical inference that the fact exists. Circumstantial evidence requires drawing additional reasonable inferences in order to support the claim. When no other conclusive evidence is present to establish the liability of the accused, the prosecution shall rely upon the circumstantial evidence corroborating with other evidence. However, the circumstantial evidence must be of conclusive tendency and must create a chain of event or evidence which only pointed towards the guilt of the accused and left no other probability in favor of accused. In Sharad Birdhi chand Sarda v. State of Maharashtra (1984) 4 SCC 116 153, the Apex court has observed about the circumstantial evidence that:
"(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be established':
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(iii)The circumstances should be of a conclusive nature and tendency:
(iv)They should exclude every possible hypothesis except the one to be proved and;
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probably the act must have been FIR No. 1038/2015 PS Narela State Vs. Muzmmel Ahmad @ Musa Page 17 of 19 done by the accused".
CONCLUSION
21. The accused has taken two main defences, both the eye witnesses are the interested witnesses as one of them is complainant and other one is the friend of the complainant and therefore their testimonies cannot be considered as reliable. However, this court finds that there is no embargo to rely upon the evidence advance by a witness who is even an interested witness and was present at the spot at the time of incident. Secondly, the defense was taken by the accused that, despite the fact that, public person were present at the spot, prosecution failed to examine any independent witness and further, he had taken the defense that, investigation in the present case was not done in fair manner. However, this court already rejected all the defenses taken by the accused and accused has not brought any defense witness to support his claim.
22. This court finds that, the prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially FIR No. 1038/2015 PS Narela State Vs. Muzmmel Ahmad @ Musa Page 18 of 19 supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by circumstantial evidence and the witnesses of the prosecution have been able to built up a continuous link.
23. In view of the above discussions, the accused Muzmmel Ahmad is hereby convicted for the charges under Section 392/394/34 Indian Penal Code.
Convicts are directed to file an affidavit of their income and assets in Annexure A format, in compliance of the directions contained in case titled "Karan v. State NCT of Delhi"; CRL.A. 352/2020 of the Hon'ble Delhi High Court, within 10 days.
State is also directed to disclose the expenses incurred in the prosecution on an affidavit along with the supporting documents within 30 days.
Let the matter now be heard on the point of sentence. Copy of judgment be given to the convict free of cost. Dictated & Announced in Open Court.
(Jitender) MM01/North/Rohini/Delhi 03.06.2023 FIR No. 1038/2015 PS Narela State Vs. Muzmmel Ahmad @ Musa Page 19 of 19