Delhi District Court
State vs . Shahid @ Shahrukh And Others on 23 March, 2023
IN THE COURT OF ASJ (FTC)-02, SOUTH DISTRICT
SAKET COURTS
PRESIDED OVER BY : SH. VISHAL PAHUJA
CNR No. DLST01-000057-2015
SC NO. 6486/16
STATE VS. SHAHID @ SHAHRUKH AND OTHERS
FIR NO. 57/14
PS: HAUZ KHAS
U/S: 392/397/411/34 IPC
State
Versus
1. Shahid @ Shahrukh,
s/o Sh. Jaan Mohammad,
r/o E-48, Old Seemapuri,
New Delhi (Proceedings abated since expired).
2. Jakir Hussain,
s/o Late Sh. Chand Master,
r/o B-557, Old Seemapuri,
New Delhi.
3. Suraj,
s/o Sh. Chander Pal,
r/o C-971, Old Shahid Nagar,
Ghaziabad, UP.
.... Accused persons
DATE OF INSTITUTION : 30.03.2015
DATE FOR RESERVING JUDGMENT : 20.03.2023
DATE OF JUDGMENT/ ORDER : 23.03.2023
FINAL ORDER : Acquitted
JUDGMENT
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. Brief facts of the case are that on receiving DD no. 18A dated 15.01.2013, HC Ravinder along with Ct. Sukraoram reached AIIMS Gate no. 2 where complainant Sh. Jatin Dev, Caller Traffic Constable Harender and HC Jaipal met who had the custody of three persons namely Shahid @ Shahrukh (since expired), Jakir Hussain and Suraj. Statement of the complainant Jatin Dev was recorded by HC Ravinder Singh.FIR No. 57/14, PS Hauz Khas State v. Shahid @ Shahrukh and others Page 1/15
2. As per the statement of the complainant, on 15.01.2014, he boarded the bus of route no. 727 from South Ex-II for Dwarka for visiting his friend. As he boarded the bus, he felt that his mobile phone, Samsung Brand that was kept in front pocket of the pant has been taken out by someone. Upon checking, the phone was found missing from the pocket of the complainant.
Complainant suspected the person standing in front of him and when he tried to check his pocket, the said person shown him a blue colour ustara that was under his shirt and the mobile phone was also with him. After inquiry, his name was revealed as Shahrukh @ Shahid. That person passed over the mobile phone to his associate i.e. accused Jakir Hussain. The complainant raised alarm and asked the driver to stop the bus. Thereafter, another associate namely Suraj along with the aforesaid accused persons shown ustara after taking out from his dub and asked the complainant to keep quiet. In the meantime, the driver of the bus stopped the bus at Gate no. 2, AIIMS Hospital where police officials were standing. At the instance of the complainant, the police personnel entered the bus and apprehended all the three accused persons and his mobile phone was recovered from the possession of accused Jakir Hussain. On the statement of the complainant, present FIR was registered.
3. After the conclusion of the investigation carried out in the FIR no. 57/14, police filed the present charge sheet against the accused persons namely Shahid @ Shahrukh, Jakir Hussain and Suraj for commission of offences punishable u/s 392/397/34 & u/s 411 Indian Penal Code (hereinafter referred to as IPC).
FIR No. 57/14, PS Hauz Khas State v. Shahid @ Shahrukh and others Page 2/154. Vide Order dated 23.04.2015, Ld. Metropolitan Magistrate concerned took cognizance of the offences u/s 392/397/34 IPC & u/s 411 IPC and the accused persons namely Shahid @ Shahrukh, Jakir Hussain and Suraj were called to face the trial. Charge sheet along with relevant documents were supplied to the accused persons in compliance to section 207 Code of Criminal Procedure (hereinafter referred to as Cr.P.C.). Thereafter, the present matter was received by way of committal to the Court of Sessions on 16.07.2015.
CHARGE
5. Vide order dated 23.04.2015, charge for the offence punishable u/s 392/34 IPC was framed by the Ld. Predecessor of this Court against the accused persons namely Shahid @ Shahrukh, Jakir Hussain & Suraj and charge u/s 397/34 IPC against the accused Suraj and Shahid @ Shahrukh who pleaded not guilty and claimed trial.
Separate charge for the commission of offence punishable u/s 411 IPC was also framed against accused Jakir Hussain who pleaded not guilty and claimed trial.
6. During trial, accused Shahid @ Shahrukh expired. Proceedings against the accused Shahid @ Shahrukh were abated vide order dated 27.09.2022.
MATERIAL EVIDENCE IN BRIEF:
7. Prosecution examined total nine (9) prosecution witnesses (hereinafter referred to as PW) to prove its case.
FIR No. 57/14, PS Hauz Khas State v. Shahid @ Shahrukh and others Page 3/158. PW-1 Sh. Jatin Dev is the star witness and complainant in the present case who deposed in view of his compliant exhibited and proved on record as Ex. PW1/A. He also exhibited and proved on record the seizure memo of the mobile phone as Ex.PW1/B, seizure memo of the ustaras recovered from the accused persons as Ex.PW1/C and Ex.PW1/D respectively, sketch memos as Ex.PW1/E and Ex.PW1/F, siteplan as Ex.PW1/G and the arrest memos as Ex.PW1/H to Ex.PW1/J respectively. PW1 also exhibited on record the superdarinama as Ex.PW1/K. All the accused persons were correctly identified by this witness. He also correctly identified and exhibited the blue colour ustaras which was recovered from accused Shahid @ Shahrukh (already expired) as Ex.P1 and Suraj as Ex.P2. He later on placed on record the copy of report which was filed after the said mobile phone got misplaced as Ex.PW1/L. This witness was cross examined on behalf of the accused persons.
9. PW-2 Sh. Dinesh Kumar was the driver of the bus in which the alleged incident happened. He deposed qua the incident but failed to identify the accused persons. This witness was cross examined on behalf of the accused persons.
10. PW-3 HC Harender from Traffic police deposed that on 15.01.2014 he was present on duty at gate no. 2 at the traffic booth of AIIMS Hospital. HC Jaipal was also on duty from local police. As per PW3, at about 12.30 PM, one bus of route no. 727 stopped there and the complianant came out alleging that his mobile has been snatched by the three boys in the bus. This witness with the help of HC Jaipal apprehended the accused persons and called at 100 number. This witness identified the FIR No. 57/14, PS Hauz Khas State v. Shahid @ Shahrukh and others Page 4/15 accused persons in the court.
11. PW5 ASI Jaipal deposed on the same lines as that of PW3 HC Harender. Both these witnesses were cross exaimed on behalf of the accused persons.
12. PW4 HC Sukraoram deposed qua the manner and his role in the investigation. This witness reached at the spot on 15.01.2014 along with HC Ravinder. This witness was handed over the rukka by HC Ravinder which he took to police station and got FIR registered. This witness could not identify the accused persons so with the permission of the court this witness was cross examined by the Ld. Additional PP for the state.
13. PW7 ASI Ravinder also deposed on the same lines as that of PW4 HC Sukraoram. In addition to the same, this witness proved and exhibited on record the rukka as Ex. PW7/A and also identified the accused persons in the court. PW7 deposed that on the personal search of accused Jakir, mobile phone of Samsung was recovered from his possession that belonged to the complainant. One ustara each were also recovered from the accused Shahid and Suraj respectively. This witness identified the ustaras and exhibited the same as Ex. P1 and Ex. P2. This witness was also cross examined by the accused persons.
14. PW6 Ct. Rakesh deposed qua the manner and his involvement in the investigation. This witness proved on record the arrest memos of the accused persons, personal search memos, sketch memos of the ustras and their seizure memos. The FIR No. 57/14, PS Hauz Khas State v. Shahid @ Shahrukh and others Page 5/15 personal search memos are exhibited as Ex. PW6/A to Ex. PW6/C and the other documents already exhibited in the testimony of PW1 are relied by PW6. This witness also identified the accused persons and the case property already exhibited as Ex. P1 and Ex. P2. This witness was cross examined by accused persons.
15. PW8 SI Harender is the duty officer who exhibited and proved on record the registration of FIR as Ex. PW8/A and the tehrir as Ex. PW8/B. This witness was not cross examined on behalf of the accused persons.
16. PW-9 SI Neeraj was the Investigating Officer in this case who deposed qua the manner and his involvement in the investigation. His testimony was more or less on the same lines as that of Ct. Rakesh PW6. This witness relied upon the documents already exhibited on record by PW1 and PW6.
17. In addition to the above, PW9 proved and exhibited on record the disclosure statment of accused persons as Ex. PW9/A, Ex. PW9/B and Ex. PW9/C respectively. PW9 further exhibited on record DD no. 18A as Ex. PW9/D, PCR form as Ex. PW9/E, notice u/s 91 Cr.P.C. as Ex. PW9/F, Driver memo as Ex. PW9/G, duty roaster as Ex. PW9/H. This witness also exhibited on record the bill of mobile phone of the complainant as Ex. PW9/J and the seizure memo of bill of mobile is Ex. PW9/I. The said mobile was released on superdaginama as Ex. PW9/K. This witness correctly identified the accused persons namely Jakir Hussain and Suraj before the court during trial. This witness also identified the case property i.e. two ustaras Ex. P1 and Ex. P2.
FIR No. 57/14, PS Hauz Khas State v. Shahid @ Shahrukh and others Page 6/15This witness was cross examined on behalf of the accused persons.
18. No other PW was left to be examined, hence PE was closed.
[ STATEMENT OF ACCUSED PERSONS U/S 313 Cr.P.C.:
19. Statement of accused persons namely Jakir Hussain and Suraj were recorded u/s 313 Cr.P.C in which all the incriminating circumstances appearing in evidence were put to them. The accused persons controverted and denied the allegations levelled against them. It is stated by accused persons Jakir Hussain and Suraj that they are innocent and have been falsely implicated in the present case. It is further stated by them that a scuffle arose between the accused persons and complainant with respect to purchase of bus ticket and no such incident happened. Accused persons opted not to lead any defence evidence.
ARGUMENTS:
20. Ld. Additional PP for State has argued that prosecution witnesses have supported the case of prosecution and their testimony has remained unrebutted. It is further submitted that the star witness i.e. the complainant of this case has categorically proved the allegations pertaining to the incident in question and also the recovery effected from the accused. That on a combined reading of testimony of prosecution witnesses, offences U/s 392/397/34 IPC and 411 IPC are proved against the accused persons Jakir Hussain and Suraj beyond reasonable doubt.
FIR No. 57/14, PS Hauz Khas State v. Shahid @ Shahrukh and others Page 7/1521. On the other hand, Ld. Counsel for accused persons namely Jakir Hussain and Suraj have stated that there is no legally sustainable evidence against them. It is further argued that there are material contradictions and infirmities in the testimony of prosecution witnesses that fails to inspire confidence. It is lastly argued that the recovery shown to have been effected from the accused persons is actually planted and in fact the mobile has never been produced before the court so its identity also could not be established. Thus, the prosecution has failed to prove its case beyond reasonable doubt, hence, accused persons deserves to be acquitted.
FINDINGS:
22. Arguments adduced by Ld. Additional PP for State and Ld. Defence Counsel for the accused persons have been heard. Evidences and documents on record perused carefully.
23. I have bestowed my thoughtful consideration to the rival submissions made before me. Accused persons are indicted for the offences u/s U/s 392/397/34 IPC and 411 IPC.
24. Section 392 IPC provides punishment for committing robbery. Section 397 IPC provides punishment for committing robbery or dacoity, if the offender uses any deadly weapon, or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person. Section 411 IPC provides punishment for dishonestly receiving and retaining any stolen property knowing or having reason to believe the same to be stolen property.
FIR No. 57/14, PS Hauz Khas State v. Shahid @ Shahrukh and others Page 8/1525. After appreciating the evidence and going through the testimony of the prosecution witnesses this Court finds the accused persons Jakir Hussain and Suraj not guilty for any offence charged herein and they deserves to be acquitted for the following reasons:-
26. Section 390 IPC lays down the ingredients that defines robbery. As per the definition, robbery is a graver offence that includes the ingredients of theft. As per the definition, theft is robbery, if in committing the theft, the offender, for that end, voluntarily causes fear of instant death or of instant hurt. Now in view of the definition above, it is to be seen from the testimony of the complainant whether the ingredients of robbery are complied with or not.
27. In his examination in chief, PW1 stated that when he made inquiry from the accused Shahid @ Shahrukh (since expired) regarding the mobile phone he offered his search and when complainant lifted his shirt, the accused was having ustara. Nowhere in his examination in chief it has been stated by PW1 that the accused Shahid @ Shahrukh (since expired) along with the other accused persons shown or pointed the ustara to him for causing fear of instant death or of instant hurt in order to deliver the mobile to accused persons. Hence, the basic ingredient of section 392 IPC is not made out in this case. Similarly, the complainant has nowhere stated in his deposition that accused Suraj used ustara at the time of committing of the offence by showing or pointing out towards the complainant, the complainant has failed to prove on record the use of deadly FIR No. 57/14, PS Hauz Khas State v. Shahid @ Shahrukh and others Page 9/15 weapon by the accused Suraj at the time of committing the robbery which is otherwise not proved, hence, the offence u/s 397 IPC is also not made out against him. In fact there is no specific role attributed to accused Suraj by the PW1 in his deposition that can attract any provision of law.
28. There are material contradictions and inconsistencies in the testimony of PW1, Jatin Dev who is the star witness of the prosecution that renders his testimony unreliable. The testimony of PW1 also vary vis-a-vis the testimony of police witnesses who were allegedly present at the spot and have apprehended the accused persons. It has already been observed above that complainant has nowhere deposed in his testimony that the accused persons shown or pointed ustara towards him and stolen his mobile which is in complete contradiction to the original complaint given by the complainant that is Ex. PW1/A. During cross examination PW1 stated that the mobile was recovered from the floor of the bus as it was thrown by the accused Jakir after seeing the police but no such fact has been stated by PW1 in his examination in chief. This fact is also missing in the complaint Ex. PW1/A. On the contrary, PW6 Ct. Rakesh deposed during his cross examination that the mobile phone was recovered by the IO on the search of accused Jakir whereas PW7 ASI Ravinder in his testimony deposed that he took the personal search of accused Jakir and the mobile phone was recovered from his possession. The statements of the aforesaid prosecution witnesses are completely contradictory to each other that goes to the root of the case and it fails to prove beyond reasonable doubt that as to from where, from whom and who actually recovered the mobile phone.
FIR No. 57/14, PS Hauz Khas State v. Shahid @ Shahrukh and others Page 10/1529. Further PW1 during his cross examination admitted that he cannot tell which ustara was recovered from which accused and the ustara were not sealed in his presence whereas the seizure memos bear the signatures of complainant and the complainant also stated during cross examination that IO took his signatures on 4-5 papers. Meaning thereby, the possibility of obtaining signatures of complainant on blank papers and thereby showing him as witness to the seizure memos as planted witness cannot be ruled out. This is again a very material discrepancy in the testimony of PW1 that goes to the root of the case itself.
30. Another material contradiction in the testimony of PW1 appeared is that he relied upon a complaint vide which his phone got misplaced as Ex. PW1/L but during his cross examination he admitted that the aforesaid report did not contain the details of his mobile. The perusal of the document Ex. PW1/L shows that the said compliant is lodged qua the loss of SIM and not qua the loss of mobile phone as stated by the complainant. The photographs of the mobile are not lead in evidence by the prosecution nor the complainant produced the mobile phone which was the case property and was a relevant piece of evidence to establish the charge against the accused. The identification of the mobile also cannot be said to proved beyond reasonable doubt.
31. The aforesaid discrepancies and the contradictions appearing in the testimony of PW1 are material enough to shake its veracity and is found to be unreliable.
FIR No. 57/14, PS Hauz Khas State v. Shahid @ Shahrukh and others Page 11/1532. PW2, Dinesh Kumar, the driver of the DTC bus failed to identify the accused persons before the court. He even failed to identify the complainant as the person who raised the alarm in the bus. Hence, this witness did not support the case of the prosecution in any manner.
33. The other two material witnesses of the prosecution were the police officials PW3 HC Harender and PW5 ASI Jaipal who apprehended the accused persons however, their testimony is not in consonance with the testimony of the complainant and have material discrepancies that does not inspire the confidence of the Court. PW3 during his cross examination stated that complainant pointed out towards the accused Jakir as the person who had taken out his mobile whereas in the testimony of PW1 it was the accused Shahid @ Shahrukh (since expired) was the person who took out the mobile. PW3 and PW5 stated in their examination in chief that the complainant came out from the bus and informed them that his mobile has been snatched by three boys. These statements of PW3 and PW5 are completely contradictory to the statement of PW1 to the effect that the mobile was not snatched rather it was taken out without the knowledge of the complainant and also that the complainant did not step out the bus to inform the police as stated by him during his cross examination rather he called police while remaining in the bus only. Further, as per PW1 the police officials who apprehended the accused persons also searched them and recovered the ustaras and the stolen mobile phone from their possession whereas PW3 during his cross examination admitted that he had not conducted the search of the accused persons, so is the case of PW5 who also nowhere FIR No. 57/14, PS Hauz Khas State v. Shahid @ Shahrukh and others Page 12/15 in his deposition claimed to have searched the accused persons. In view of above inconsistencies, the testimony of PW3 and PW5 is also found to be tainted, thus, liable to be discarded.
34. PW4 Sukaraoram who attended the call with HC Ravinder at the place of incident failed to identify the accused persons. As this witness did not support the case of the prosecution, he was cross examined by the Ld. Additional PP for the state but even during his cross examination he could not identify the accused persons, hence, this witness is of no help to the prosecution.
35. Testimony of PW6 vis-a-vis the testimony of PW7 is again found to be contradictory on the aspect of recovery of the mobile phone. PW6 Ct. Rakesh during his cross examination stated that the mobile phone was recovered by the IO SI Neeraj on search of accused Jakir whereas PW7 ASI Ravinder claimed to have recovered the mobile phone by conducting personal search of accused Jakir. The statements of both the aforesaid witnesses is also in contradiction to the statement of PW1 as per whom the mobile phone was recovered from the floor of the bus. Hence, testimony of PW6 & PW7 also found to be doubtful and does not inspire confidence.
36. Ld. Counsel for the accused persons raised the contention that the seal after the use was kept by Ct. Rakesh and it was never deposited with Malkhana so tampering of the case property by the police official who is witness to the proceedings cannot be ruled out.
FIR No. 57/14, PS Hauz Khas State v. Shahid @ Shahrukh and others Page 13/1537. As per the testimony of PW9 SI Neeraj, the seal after the use was handed over to Ct. Rakesh i.e. PW6, and it is also admitted by this witness that the seal remained with Ct. Rakesh for two days and was not deposited with Malkhana till it remained in his presence. PW6 Ct. Rakesh who himself was a recovery witness is a material witness who is always interested in the success of the case of the prosecution and keeping in view this fact, the chances of fabrication & planting of the case property cannot be ruled out. Further no DD entry of handing over or returning of seal is on record. Hence, this aspect raised by defence has substance and coupled with the other discrepancies regarding recovery of case property discussed in preceding paragraphs also causes dent in the story of prosecution.
38. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt if any in the prosecution story and such reasonable doubt entitles the accused to acquittal.
39. In view of the material inconsistencies in the testimony of the prosecution witnesses, this Court is of the view that prosecution has miserably failed to prove its case beyond reasonable doubt. The case property recovered remained under cloud of doubt and could not be established beyond reasonable FIR No. 57/14, PS Hauz Khas State v. Shahid @ Shahrukh and others Page 14/15 doubt. The evidence coming on record entitles the accused persons for the benefit of doubt. Therefore, the accused persons namely Jakir Hussain and Suraj are hereby acquitted of the charges levelled against them in the present case.
Digitally signed by VISHAL VISHAL PAHUJA
PAHUJA Date:
2023.03.23
14:43:03 +0530
ANNOUNCED IN THE OPEN (VISHAL PAHUJA)
COURT ON 23.03.2023 ASJ (FTC) -02
SOUTH DISTRICT
SAKET COURTS
Containing 15 pages all signed by the presiding officer.
Digitally signedVISHAL by VISHAL PAHUJA PAHUJA Date: 2023.03.23 14:43:09 +0530 (VISHAL PAHUJA) ASJ (FTC) -02 SOUTH DISTRICT SAKET COURTS FIR No. 57/14, PS Hauz Khas State v. Shahid @ Shahrukh and others Page 15/15