Delhi District Court
State vs Sadab @ Shamshad on 4 August, 2012
IN THE COURT OF SH. RAVINDER DUDEJA: ADDITIONAL SESSIONS JUDGE; (EAST) FTC : E COURT: KARKARDOOMA COURT: DELHI. SESSIONS CASE No. 58/11 FIR No. 139/11 U/S: 392/397/394/411/34 IPC. P.S: Anand Vihar. State Versus Sadab @ Shamshad S/o Munna, R/o B-343, NSA Colony, Shahdara, Delhi. Date of Institution : 19.07.2011 Date of Arguments : 28.07.2012 Date of Judgment : 04.08.2012 JUDGMENT
1. Prosecution case, in brief, is that on 04.05.2011 after taking dinner, complainant Surender was taking a walk with his neighbourer Dildar at CBD Ground. At about 8.30 - 8.50 pm while they both were going towards Pir Baba Mazar from Big Bazar, 3-4 boys came from opposite side and caught them and asked them to handover whatever they were having. When they refused, one of those boys caught complainant and stabbed him with a knife like weapon on his left thigh and also stabbed Dildar on his leg. Thereafter, those boys snatched Samsung mobile phone No. 5233 bearing No. 9818020543 and a brown colour purse having driving license, FIR No. 139/11 1 of page 11 a photograph, some documents of Catmos company and cash of Rs. 600- 700/- from the complainant and snatched cash from Dildar. The assailants then fled away from the spot. Complainant informed the police officials who met him at Big Bazar. Complainant and Dildar were rushed to Dr. Hedgewar Hospital by the police. Statement of complainant was recorded. FIR under Section 392/34 IPC was registered. On 09.05.2011, on the pointing out of informer, accused Sonu and Shahadat @ Sadhu (both juveniles) were arrested. On interrogation, they gave the names of their associates as Saddam and Sadab. Mobile phone was recovered from juvenile accused Sonu and purse was recovered from juvenile accused Shahadat @ Sadhu. On 10.05.2011, juvenile accused Saddam was arrested and case property i.e. Rs. 200/- were recovered from his possession. All the three juveniles were produced before JJ Board. On 25.05.2011, an information was received that accused Sadab @ Shamshad was arrested in case FIR No. 116/11 under Section 307/34 IPC, PS Farsh Bazar. He was formally arrested in this case. Accused refused to take part in the TIP. On completion of investigation, charge sheet was prepared under Section 392/394/397/411/34 IPC and accused was sent to court for trial.
2. After compliance of Section 207 Cr. PC, the case was committed to Sessions Court. Charge under Section 394/34 IPC read with Section 397 IPC was framed against the accused to which he pleaded not guilty.
3. In order to prove its case, prosecution examined 14 witnesses. PW-1 is Sh. J.P. Nahar, MM. He had conducted the TIP of accused.
FIR No. 139/11 2 of page 11 Accused had refused to participate in the TIP.
PW-2 is SI Hawa Singh, Duty Officer. He proved the FIR Exbt. PW-2/A. PW-3 is Surender. He is the complainant. He proved his statement Exbt. PW-3/A. PW-4 is Dr. Sachin Rajpal from Dr. Hedgewar Hospital. He gave the opinion that injuries of Surender were simple in nature.
PW-5 is Constable Arun Kumar. He is the witness of investigation. He had assisted HC Vakil Khan in the investigation of the case. He took the rukka to the police station for the registration of the FIR. He stated that IO had called the crime team at the spot and got the scene of crime photographed. In his presence, HC Vakil Khan had lifted the blood sample and blood stained concrete from the spot.
PW-6 is Constable Jagtender. He is the witness of arrest of JCL Saddam.
PW-7 is SI Arun Sindhu. He is the second IO. He went at the spot, called the crime team and got the scene of crime photographed. He had lifted the blood and earth control from the spot. He had seized the two sealed pullandas given to him by the doctor at Dr. Hedgewar Hospital. During investigation, he recorded the statements of witnesses and prepared the site plan Exbt. PW-7/A. He had seized the receipt of mobile FIR No. 139/11 3 of page 11 phone vide memo Exbt. PW-3/PX-10. On 08.05.2011, he obtained result on the MLC of Dildar from LNJP Hospital. On 09.05.2011, he arrested the JCL Sonu and Shahadat from CBD Ground on the pointing out of the injured and recovered one mobile phone make Samsung from the right pocket of pant of Sonu and a purse containing the photocopy of driving license of the complainant, one SIM card and 3-4 bank slips from JCL Shahadat. On 10.05.2011, he arrested accused Saddam at the instance of complainant Surender and recovered Rs. 200/- in his search. On 25.05.2011, he received information from SI Ombir Singh from PS Farsh Bazar about the arrest of accused Sadab @ Shamshad in case FIR No. 116/11 PS Farsh Bazar, On 01.06.2011, he arrested the accused Sadab @ Shamshad and interrogated him and recorded his disclosure statement Exbt. PW-7/C. He then filed an application for the TIP of accused but he refused to take part in the TIP.
PW-8 is Dildar. He deposed that on 04.05.2011 at about 8.30 pm after taking dinner while he and his neighbourer Surender were roaming at CBD Ground near Dargah, four boys came there from front side and caught him and Surender. Two of them were carrying knives in their hands and asked them to handover whatever they had but they refused to give. Those boys then took out Rs. 150/- from the front pocket of his shirt and also snatched purse and mobile phone from Surender and one of them stabbed on his right side hip. They also stabbed Surender. All the assailants then fled away from the spot. At some distance, two policemen met them and took them to Dr. Hedgewar Hospital. After 4-5 days, police recorded his statement. He identified the accused as one of the assailants who had stabbed him.
FIR No. 139/11 4 of page 11 PW-9 is Dr. A. Saha from Dr. Hedgewar Hospital. He had examined Surender and Dildar at Dr. Hedgewar Hospital and prepared their MLCs Exbt. PW-4/A and Exbt. PW-4/B respectively.
PW-10 is Constable Adesh. He stated that accused Sadab @ Shamshad was arrested by SI Ombir Singh in case FIR No. 116/11 PS Farsh Bazar at Subzi Mandi, NSA Colony and in that case, he made disclosure statement Exbt. PW-10/A. PW-11 is HC Vakil Khan. He is the first IO. He had recorded the statement of Surender, prepared the Rukka and sent the same at police station through Constable Arun Kumar for the registration of the FIR. After registration of the FIR, the investigation was entrusted to SI Arun Sindhu.
PW-12 is Dr. Kamal Kishore Gautam from LNJP Hospital. He had examined Dildar. He stated that Dildar was operated on 15.06.2011. He proved the surgical record of Dildar as Exbt.PW-12/A. He gave the opinion that the injuries were dangerous in nature.
PW-13 is Constable Narender. He was dropped by the learned APP.
PW-14 is SI Ombir Singh. He stated that accused Sadab was arrested in case FIR No. 116/11, PS Farsh Bazar under Section 307/34 IPC on the basis of secret information and on interrogation, he gave disclosure statement Exbt. PW-10/A. FIR No. 139/11 5 of page 11
4. Statement of accused was recorded under Section 313 Cr. PC wherein he stated that he is innocent. He refused to lead evidence in his defence.
5. Arguments have been heard from Mohd. Iqrar, learned APP and Sh. Gaurav Vashisht, Amicus Curiae for the accused. The main argument of learned Amicus Curiae is that no recovery has been affected from the accused persons and their identity is not proved beyond doubt. It is submitted that PW-3 identified the accused as the person who was apprehended by the police on 10.05.2011 while PW-8 admitted in cross examination that he was shown the photograph of the assailants in the police station. It is argued that accused was justified in refusing the TIP as his photograph was shown to the witnesses and therefore TIP has lost its purpose and objective and therefore identification of accused by PW-3 and PW-8 for the first time in court is no identification. The learned APP however submits that accused refused to take part in the TIP and was identified in court by PW-3 and PW-8 as one of the assailants who robbed them and therefore there is no reason to disbelieve the evidence of identification of accused by the witnesses in court.
6. I have considered the submissions made before the court and have carefully gone through the records of the case. Admittedly, no recovery has been affected from the accused but recovery is not sine qua none for proving the case of robbery. Prosecution is relying on the evidence of identification of accused to prove its case. If the prosecution case is to be believed, the incident took place on the night of 04.05.2011 and accused was arrested on 24.05.2011 in case FIR No. 116/11 under FIR No. 139/11 6 of page 11 Section 307/34 IPC PS Farsh Bazar. Thus admittedly, accused was not arrested from the spot. Accused is not named in the FIR. It is the admitted case of prosecution that accused was not known to the witnesses prior to the occurrence. Therefore prior TIP is a must before accepting the evidence of identification in court to test the memory of the witnesses. The TIP was conducted by PW-1 Sh. J.P. Nahar, MM. He stated that accused refused to take part in the TIP. Accused took the plea that his photographs were taken at PS Jagat Puri and further that witnesses stay in his mohalla and they know him by face.
7. The learned Amicus Curiae argues that the plea of accused is proved by the fact that PW-8 Dildar himself admits in cross examination that he was shown the photographs of the assailants at the police station and therefore prior TIP of accused is of no value and the identification of accused by PW-8 in court is no evidence in the eyes of law.
8. In his deposition in court, PW-8 Dildar stated that accused was one of the assailants/robbers. According to him, it was the accused who had stabbed him. In cross examination, he stated that he had visited the police station only once after his discharge from the hospital. He could not tell the date of his visit to the police station but stated that it was about a week after the incident. He admitted that after the incident, when he went to the police station for the identification of the boys, he could not see them as he started bleeding and returned back to Dr. Hedgewar Hospital. He admitted that the police had informed him that they had apprehended the assailants. He admitted that he was shown the photographs of the assailants in the police station before he started bleeding. It is apparent FIR No. 139/11 7 of page 11 from the cross examination of PW-8 that he visited the police station one week after the occurrence i.e. 11.05.2011. Juvenile accused Sonu and Shahadat were arrested on 09.05.2011 and juvenile accused Saddam was arrested on 10.05.2011. Till 11.05.2011, accused Sadab was not even arrested and therefore it is improbable that PW-8 had seen his photograph at the police station when he visited there on 11.05.2011. It is not the plea of the accused that police already had his photographs with them which were shown to accused Sadab. Thus, accused had no justification for refusing to take part in TIP and his defence that PW-8 identified him in court on the basis of photographs shown to him on his visit to police station one week after the incident is not acceptable. He has been identified in court by PW-8. PW-8 admitted in cross examination that the incident took place at a deserted place but denied that there was darkness at the place of incident. He stated that there was light. He denied that due to darkness, he could not see the faces of the assailants. Therefore, I have no reason to disbelieve the evidence of identification of accused by PW-8 Dildar.
9. PW-3 Surender deposed that on 04.05.2011 while he and his neighbourer Dildar were walking at CBD Ground after taking meals, at about 8.30-8.45 pm when they reached near Big Bazar, four boys came from behind and caught them from their necks asking them to handover whatever they had. On his refusal, he and Dildar were stabbed. He was stabbed on his left thigh while Dildar was stabbed on his hip. His purse containing Rs. 700/-, photocopy of driving license and some other documents and a mobile phone make Samsung 5233 were taken away by those boys. He stated that on 10.05.2011, police joined him in the investigation and when they reached at gali No. 10, Bhikam Singh Colony, FIR No. 139/11 8 of page 11 police apprehended accused Sadab. He stated that Sadab was one of the assailants who robbed him and Dildar and it was he who had stabbed him on his left thigh. The learned Amicus Curiae has argued that PW-3 has wrongly identified the accused and therefore a doubt has been created as to whether the accused was actually one of the assailants.
10. PW-3 Surender was declared partly hostile and was cross examined by the learned APP. In the said cross examination, he admitted that on 10.05.2011, one boy named Saddam was arrested and not accused Sadab and that he deposed about the arrest of Sadab out of confusion and lapse of time. Having gone through the testimony of PW-3, I find that it is not a case where the witness failed to identify the accused but a case where he got confused about the name of the accused as JCL accused Saddam was apprehended on 10.05.2011 and not the present accused Sadab. He pin-pointedly stated that accused was one of assailants and it was he who stabbed on his left thigh. The evidence of identification of accused by PW-3 finds corroboration from PW-8 Dildar and therefore, in my, view prosecution has been able to prove the identity of accused beyond doubt.
11. The learned Amicus Curiae has argued that as per FIR, there were 3-4 assailants but in court, both the witnesses i.e. PW-3 and PW-8 have stated that there were four assailants. It is submitted that there is contradiction in the testimonies of PW-3 and PW-8, inasmuch as, PW-3 deposed that the assailants came from behind while PW-8 stated that the assailants came from their front side. It is further submitted that as per list of witnesses, PW-3 and PW-8 are the residents of C-135, Gali No. 5, NSA FIR No. 139/11 9 of page 11 Colony but PW-3 has stated that PW-8 was his neighbourer and was not residing at house No. C-135. It is thus submitted that the testimonies of both the material witnesses are not trustworthy and it would be unsafe to rely on their testimonies to convict the accused.
12. The case of prosecution since beginning is that PW-3 and PW- 8 were neighbourers. PW-3 Surender gave his address in court as C-135, Bhikam Singh Colony, Vishwas Nagar while PW-8 Dildar gave his address as C-113, New Sanjay Amar Colony, Shahdara. Even in the FIR, PW-3 gave the address of PW-8 as C-113. Witness would not have gained anything by giving wrong address of PW-8 and therefore they cannot be disbelieved merely because incorrect address of PW-8 is mentioned in the list. In the FIR, it is mentioned that there were 3-4 assailants while in court, PW-3 and PW-8 stated that there were four assailants. It cannot be regarded as a contradiction in the prosecution case. The alleged contradiction with regard to the side from which the assailants came cannot be regarded as a material contradiction which may impeach the credibility of the witnesses. PW-3 and PW-8 are themselves the injured witnesses. Their presence at the spot is beyond any doubt. The testimonies of injured witnesses have a great probative value. Their testimonies are straight forward and cogent. They have withstood the test of cross examination. Their testimonies find corroboration from medical evidence. Hence, in my view, there is no reason to disbelieve their testimonies.
13. Accused has taken the defence that he is a resident of B Block and that PW-3 used to quarrel with the residents of B Block and therefore accused and other residents of the area asked him not to come to B Block FIR No. 139/11 10 of page 11 and therefore mohalla rivalry is the reason for the false implication of accused by PW-3. Accused did not produce any witness to prove his defence. Moreover, it is not the case of the accused that injuries were self inflicted. Thus, it is difficult to accept that PW-3 and PW-8 would save the actual culprit and get the accused falsely implicated merely because of some petty quarrel between them. I am therefore not ready to accept the defence of the accused.
14. In view of my aforesaid discussion, I am of the opinion that prosecution has been able to prove its case against the accused beyond doubt. I therefore hold the accused guilty and convict him under Section 394/34 read with Section 397 IPC.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE:FTC/E-COURT/KKD/DELHI.
ANNOUNCED IN THE OPEN COURT ON 04.08.2012.
FIR No. 139/11 11 of page 11