Delhi District Court
State vs . 1. Mustakeen S/O Muslim, R/O 2222 Gali on 9 May, 2013
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 01 : NORTH EAST / KARKARDOOMA
COURTS: DELHI.
Case ID Number. 02402R0020312003
Sessions Case No. 97/2012
Assigned to Sessions. 13.11.2003
Arguments heard on 07.05.2013
Date of Judgment 09.05.2013
FIR No. 203/2003
State Vs. 1. Mustakeen s/o Muslim, r/o 2222 Gali
No.01, Bajrang Bali Mohalla, Delhi.
2. Imran s/o Rafiq Ahmad, r/o E612, Gali
No.22, Old Mustafabad, Delhi.
3. Mohd. Yusuf s/o Abdul Hamid, r/o Gali
No.17, Old Mustafabad, Delhi.
4. Arif s/o Abdul Rehman, r/o F65, Gali
No.6, Bhagirathi Vihar, Delhi.
5. Shamsher s/o Mohd. Yasin, r/o House
No.6, 3rd Pushta, New Usmanpur, Delhi.
Police Station Bhajanpura
Under Section 392/397/411/34 IPC
JUDGEMENT
1. Vide this judgment I shall dispose off the present case in which Station House Officer of Police Station Bhajanpura had filed a challan vide FIR No.203/2003 dated 28.06.2003 u/s 395/394/397/412 IPC for the prosecution of accused persons namely Mustakeen, Imran, Mohd. Yusuf, Arif and Shamsher in the court of Ld. SC No.97/2012 State v. Mustakeen and others 1/48 MM and Ld. Metropolitan Magistrate after compliance of section 207 Cr. P.C. committed this case before my ld. predecessor court and thereafter, this case was transferred to this court for trial.
2. Case of prosecution is that on 28.06.2003 a DD No.44B Ex.PW12/A recorded at police station Bhajanpura stating therein that in front of Anupam Market Lovely Marriage Home Maujpur Chowk 89 men came and ran away after snatching mobile and cash.(regarding). Same DD was assigned to ASI Narender Pal. On receipt of DD, ASI Narender Pal reached at shop No. 130/131, Maujpur, situated at Lovely Marriage Home, 66 Futa Road, Delhi and found PW Pankaj there. ASI Narender Pal had recorded statement of complainant Pankaj Ex.PW3/A and made endorsement upon the same Ex.PW4/A and got registered FIR Ex.PW4/B u/s 392/34 IPC. Thereafter, investigation of case was assigned to S.I. Manoj Bhatia. S.I. Manoj Bhatia had got the scene of crime inspected and prepared site plan Ex.PW19/A of the place of occurrence at the instance of complainant. During the course of investigation, accused persons namely Mustkeen, Imran, Mohd. Yusuf, Arif and Shamsher were arrested for the offences u/s 392/397/411/34 IPC in case FIR No.265/2003 and FIR No.269/2003.
CHARGES:
3. On the basis of material available on record ld. predecessor of this court had framed a charge, vide order dated 19.12.2003 against accused persons namely Mustkeen, Imran, Mohd. Yusuf, Arif and Shamsher for offences punishable u/s SC No.97/2012 State v. Mustakeen and others 2/48 392/397/34 IPC and a separate charge was also framed for the offence punishable u/s 411 IPC against accused persons namely Mustkeen, Imran, Mohd. Yusuf, Arif and Shamsher to which accused persons did not plead guilty and claimed trial. PROSECUTION WITNESSES:
4. In order to prove its case prosecution has examined 19 witnesses namely PW1 Lady Ct. Manju, PW2 Anju, PW3 Pankaj Gandhi, PW4 HC Satya Pal Singh, PW5 ASI Tara Dutt, PW6 S.I. Rakesh Kumar, PW7 Ct. Banwari Singh, PW8 Ct. Vinod Kumar, PW9 Ct. Sher Singh, PW10 Ct. Dinesh, PW11 Ct. Ratan, PW12 ASI Narender Pal, PW13 Ct. Rattan Singh, PW14 Ms. Barkha Gupta, Ld. ASJ, PW15 HC Yashbir, PW16 HC Dal Singh, PW17 Inspector Suman Kumar Sharma, PW18 Inspector Lekh Raj Singh and PW19 S.I. Manoj Bhatia.
5. PW1 Lady Ct. Manju. This is the witness of taking injured Anju for her medical examination. This witness had got the medically examined prosecutrix Anju from the GTB Hospital at the instance of S.I. Manoj Bhatia. During the course of investigation, In her presence, S.I. Manoj Bhatia had taken into possession three bills of mobile vide seizure memo Ex.PW1/A on being produced by
6. In her cross examination by ld. defence counsel, this witness has deposed that the age of Anju was of 15 or 16 years approximately and from the appearance she was looking like of the age of 15 or 16 years. This witness has deposed that she SC No.97/2012 State v. Mustakeen and others 3/48 cannot tell whether the bills were produced were original or in photostate. This witness had denied to the suggestion that the bills were original or photostate as the bills were not produced before her or to the I.O. by the complainant.
7. PW2 Anju is a material witness being eyewitness and injured in this case. This witness has deposed that in the month of June'2003 she was working in the Lovely Marriage Home and they were dealing in the sale of mobile phone and Pankaj Gandhi was the owner of the shop. This witness has further deposed that on 28.06.2003 at about 3:15 - 3:30 p.m. when she was present at the shop, one boy had come to the shop who had asked regarding the Mobile phone kept in the shop and owner, Pankaj Gandhi asked him as to of what amount he wishes to purchase the Mobile phone and in the meanwhile two more persons had come in the shop and two persons subsequently come in the shop were his colleague. This witness has further deposed that on asking of those persons as to whether the second hand mobile phone can be made available to them for sale, Pankaj Gandhi had told them that the same would be available at the cost of Rs.3,000/ and in the meanwhile two more persons had come into the shop and the person who had come first into shop had told that whether the mobile phone repaired in the shop then Pankaj Gandhi had told them that they also repaired the mobile phones. Thereafter, the two persons, who had entered into the shop had gone outside the shop, and stood there while the person who had come first in the shop standing near the counter at that time had caught hold Pankaj from his neck and the other two persons had come near her and tied her hands, feet and also gaged her mouth and thereafter, SC No.97/2012 State v. Mustakeen and others 4/48 they had tied the hands, feet as also gaged the mouth of Pankaj Gandhi. Thereafter, the persons who had entered the shop had cut the telephone wires and also the wires of the cameras fitted inside the shop and had asked the keys of the safe containing the cash and other articles of the shop from Pankaj Gandhi who had then given them the keys of the safe. This witness has further deposed that thereafter, those persons who had come into shop had taken all the mobile kept in the shop as also the cash from the Mandir inside the shop as also the recharge coupon kept inside the shop and they had also taken away the new mobile phones kept in the shop. This witness had correctly identified the accused persons namely Mustakeen, Md. Yusuf, Imran and Shamsher in the court.
8. This witness has failed to identify the accused Arif present in the court as the alleged offender.
9. In her cross examination by Ld. APP for the State, this witness had denied to the suggestion that he had told the police the name of the accused Arif also as one of the person who had come into the shop on 28.06.2003 at about 3:30 p.m. and was present. Her statement was confronted from point A to A where it is so recorded.
10.In her cross examination by Sh. S.S. Sisodia, counsel for the accused Imran, her statement Ex.PW2/D1 was confronted on various facts.
11.In her cross examination by Smt. Mamta Rathor, counsel for accused Shamsher, SC No.97/2012 State v. Mustakeen and others 5/48 this witness has deposed that she was working, at the shop where the robbery took place, for a period of about one and half months prior to the incident and the father of Pankaj Gandhi had come to the shop and they were untied by him. This witness admits that she had not sustained any injury.
12.This witness recalled for cross examination on behalf of accused Yusuf after allowing application u/s 311 Cr. P.C. In her cross examination by Sh. A.K. Sharma, Amicus Curaie, for accused Yusuf, this witness has deposed that she has no proof of her employment with Pankaj Gandhi nor she can produce the same. This witness has further deposed that no incident took place in her presence during her employment with Pankaj Gandhi and on 19.04.2005 she had deposed at the instance of police.
13.PW3 Pankaj Gandhi is a material witness being complainant. This witness has deposed that on 28.06.2003 at about 3:30 p.m. he was present at his shop (mobile shop) situated on the ground floor of his house at 130/31, Mauzpur, 66 ft. Road, Delhi in the name and style of Lovely Home and his employee namely Anju was also present there. This witness has further deposed that one boy came there and asked him to show old mobile phone, on it he replied that he had no old mobile phone with him at that time and he suggested him to purchase new mobile phone i.e. C35, Seamens and while he was showing the above said mobile phone to him, he immediately took out katta and pointed it on his temple. This witness has further deposed that four of his coaccused came inside the shop and on this SC No.97/2012 State v. Mustakeen and others 6/48 assailant who had put his katta on his temple told him that these persons were from his village and these persons were from his village and they were having two bags with them, one was of green colour which was big in size and the other bag was of black colour smaller in size.
14.This witness has further deposed that they had opened the big bag at that time and had taken out a rope, knives and another katta and one of the assailant had closed the door of the shop and they had tied him as well as Anju, his worker with the rope and then the assailant who was holding the katta to his temple told him to hand over the keys of his galla/the drawer in which the money of the shop was kept to him. This witness has correctly identified the accused persons namely Mustkeen, Arif, Imran, Shamsher and Mohd. Yusuf present in the court.
15.This witness has further deposed that accused persons namely Mustkeen and Arif had remained along with him and his worker Anju in the shop whereas the other accused persons namely Imran, Shamsher and Mohd. Yusuf had committed robbery of the cash amount of Rs.5,000/ lying in the galla as also cash Rs.3,000/ lying in the draw of the Computer table in the shop and they had also committed robbery of all the new and old mobile phones, chargers of the mobile phones and other articles lying in his shop by putting them in the green coloured big bag brought by them along with them to his shop and thereafter, accused persons had left his shop leaving himself and his worker Anju lying tied therein by threatening them that in case they told anybody regarding them or the incident they would SC No.97/2012 State v. Mustakeen and others 7/48 shoot them to death and accused persons had left the shop at that time by closing the door of the shop. Thereafter, this witness had raised alarm and was rescued by his father namely Raj Kumar Gandhi and he had also untied Anju and he had rung up the police to inform them of incident on 100 number at that time. This witness has proved his statement Ex.PW3/A.
16.This witness has further deposed that on 29.06.2003, the police officials had reached at his shop and he had given the bills/invoices regarding mobile phones and it were taken into possession by police vide seizure memo Ex.PW1/A and police had also prepared site plan at his instance.
17.This witness has further deposed that he had identified the case property in the instant case viz the mobile phones, their chargers, cash coupons of mobile phones and the cords of the mobile phones looted by the accused from his shop at that time and allegedly recovered from the accused by the police pursuant to their apprehension and arrest in the instant case in the TIP proceedings held in their respect in the competent court of law.
18.This witness had identified mobile make Soni Ericson T100 Ex.P1, Nokia 2100 Ex.P4, Nokia 3530 Ex.P3 which were produced from malkhana.
19.This witness had brought the case property which was robbed from his shop and he had taken the same on superdari. This witness had correctly identified mobile SC No.97/2012 State v. Mustakeen and others 8/48 phone make Nokia 3310 Ex.P2, dummy mobile phone Alka Tel Ex.P5, mobile phone Pena Phone Ex.P6, mobile phone Ericson Ex.P7, mobile phone Bosch Ex.P8, mobile phone Ericosn Ex.P9, mobile phone Motorola Ex.P10, mobile phone Garoor Ex.P11, mobile phone Panasonic Ex.P12, mobile phone Voda phone Ex.P13, mobile phone Nokia Ex.P14, mobile phone Semens Ex.P15 and mobile phone Panasonic Ex.P16, 12 dummy mobile phones Ex.P17/1 to Ex.P17/12, two chargers make Motorola and Samsung 2400 Ex.P18 and P19, 11 strips of mobile phone Ex.P20/1 to 11, 26 recharge coupons valuing different amount Ex.P21/1 to 26, 33 recharge coupons Airtel Magic of different values Ex.P22/1 to 33, 17 envelops of HUTCH in torn condition Ex.P23/1 to 17, 17 recharge coupons of trumps in torn condition Ex.P24/1 to 17 to be the same which were robbed from his shop. This witness had taken robbed articles on superdari vide superdaginama vide memo Ex.PW3/B.
20.In his cross examination by ld. defence counsel, this witness has deposed that the registration number his shop is known to his father and the shop was established by his father and he used to run the shop and he had not handed over any paper in respect of insurance of the shop to the police. This witness has further deposed that his hands and feet were tied with rope and the same was taken by the I.O. This witness had denied to the suggestion that his hands and feet were not tied nor there was any rope. This witness has deposed that he had purchased the recharge coupons of Airtel from Aggarwal store at Yamuna Vihar, Idea and MTNL recharge coupons from Goel's shop at Gokalpuri and Vodaphone recharge coupons from SC No.97/2012 State v. Mustakeen and others 9/48 Sai's Store from Yamuna Vihar and he had purchased the new Nokia and Soni Ericsson mobile phone from Telemart, CBSE building Preet Vihar and he had purchased the new Semens mobile phone from Patparganj. This witness had denied to the suggestion that he had not purchased the mobile phone from the above shops. This witness had denied to the suggestion that he had not given any claim to any of the owner of the robbed mobile phones.
21.This witness has further deposed that after hearing his cries his father reached at the spot from the upper storey and untied their hands. This witness has further deposed that he came to know the name of accused persons after their arrest and police officials informed him about the names of the accused persons and identified them in the police station after 23 days of the incident.
22.In his cross examination by Sh. R.K. Kochar, ld. counsel for accused Arif, this witness has deposed that the faces of the accused persons were covered when they entered in the shop and he cannot tell whether the face of accused Arif was also covered at that time or not and the faces of accused persons were not covered outside the shop. This witness has further deposed that he had told the police that when the accused persons came inside they had covered the faces with handkerchiefs. This witness admits that police had obtained his signatures on many papers and he had not read those papers as he was under the impression whatever have been written by the police was correct.
SC No.97/2012
State v. Mustakeen and others 10/48
23.PW4 HC Satya Pal Singh is a formal witness being duty officer. This witness has proved carbon copy of FIR vide Ex.PW4/B which was recorded on the basis of rukka Ex.PW4/A produced by ASI Narender Kumar. This witness has also recorded endorsement Ex.PW4/C on rukka Ex.PW4/A and thereafter, investigation was assigned to S.I. Manoj Kumar.
24.PW5 ASI Tara Dutt. This witness has deposed that on 04.07.2013, he was conducting investigation of case FIR No.269/03 registered at police station Gokalpuri, Delhi, for offence punishable under section 25 of the Arms Act and accused Arif was arrested in that case on that day. This witness has further deposed that accused Arif had made a disclosure statement vide Ex.PW5/A disclosing therein that he can get recovered 12 mobile phones, sixty two cash cards and four packets of plastic ropes used in mobiles and two chargers from his house bearing municipal No. F65, street No.6, Bhaghirathi Vihar, Delhi and accordingly, he had got recovered 12 mobile phones, seven threads (wires) used for suspending the mobile phones with neck or other part of the body, two chargers and 60 cash cards (out of which 33 were of Airtel and balance of were Idea company) kept in a polythene pack which was over niche in the room of his house. This witness had seized the same vide seizure memo Ex.PW5/B.
25.In his cross examination by Sh. Gaurav Vashisht, counsel for accused Arif, this has deposed that no public person was asked to sign the disclosure statement or arrest memo of accused Arif and he had not given any notice to public persons SC No.97/2012 State v. Mustakeen and others 11/48 who refused to join the investigation.
26.PW6 S.I. Rakesh Kumar. This witness is the incharge of Mobile Crime Team of North East District of Police, Delhi. This witness has proved SOC report vide Ex.PW6/A.
27.PW7 Ct. Banwari Singh. This witness had accompanied ASI Narender Pal to Lovely Marriage Home, 66 Futa Road, Vijay Park, Mauzpur, Delhi. This witness had taken the rukka to police station and got the FIR registered and handed over copy of FIR and rukka in original to S.I. Manoj Bhatia. In his presence, crime team officials got the spot photographed.
28.In his cross examination by Sh. R.K. Kochar, ld. counsel for accused Arif, this witness has deposed that 2025 public persons were present at the spot when they reached there and Pankaj Gandhi had not produced any cash memo/bills concerning goods robbed from his premises.
29.PW8 Ct. Vinod Kumar. This witness has deposed that on 03.07.2003 he along with S.I. Lekh Raj, Ct. Sher Singh, Ct. Shyam Lal and Ct. Raj Kumar were present in the area of New Mustafabad and on that day, accused persons namely Yusuf, Mustkeen, Imran and Shamsher were arrested in case FIR No.265/03 u/s 411/34 IPC and they were interrogated in that case and they disclosed about their involvement in this case and one mobile from each accused was recovered which SC No.97/2012 State v. Mustakeen and others 12/48 was robbed from Lovely Mobile Phone, 66 Futa Road, Mauzpur, Delhi and all the recovered mobile phones were converted into separate parcels and were taken into possession after sealing the same with the seal of LRS. This witness had signed recovery memo mark X8 of mobile which was recovered from the possession of accused Mustkeen and the said mobile phone was of Soni Ericsson No.T100 of white and blue colour.
30.This witness has correctly identified the mobile which was recovered from the possession of accused Mustkeen Ex/P1.
31.In his cross examination by ld. defence counsel, this witness admits that case property was not produced in sealed condition today and no mark of identification was put by the IO on mobile phone Ex.P1. This witness has deposed that Pankaj Gandhi was not present with them at the time of recovery.
32.PW9 Ct. Sher Singh. This witness is the member of raiding party. This had apprehended accused Shamsher in case FIR No.265/2003 u/s 411/34 IPC PS Gokalpuri, Delhi and one mobile phone make Nokia 3310 of blue colour was recovered from the possession of accused Shamsher and same was taken into possession vide a recovery memo vide mark X9.
33.This witness has correctly identified mobile phone recovered from the possession of accused Shamsher vide Ex. P2. In his presence, pointing out memo of the place SC No.97/2012 State v. Mustakeen and others 13/48 of occurrence was prepared vide Ex.PW8/A.
34.In his cross examination by ld. defence counsel, this witness admits that name of the company Nokia is not mentioned on the mobile phone Ex.P2. This witness had denied to the suggestion that no mobile phone was recovered from the accused and that he is deposing falsely in this regard. This witness had denied that accused persons had not made any pointing memo and that he is deposing falsely in this regard.
35.PW10 Ct. Dinesh. This is the witness of apprehending of accused Arif and recovery of 12 mobile phones of different companies, two charger and several mobile cases from the possession of accused Arif. This witness could not identify the accused Arif in the Court.
36.PW11 Ct. Ratan. This witness had joined the investigation of this case on 04.07.2003 and he went to police station Gokulpuri along with S.I. Manoj Kumar. This witness has proved arrest memo of accused persons vide Ex.PW11/A1 to A4 but he could not tell the names of them.
37.In his cross examination by ld. defence counsel, this witness has denied to the suggestion that he had not joined investigation or that the accused persons were not arrested in his presence or that memos were signed by him at the police station. SC No.97/2012
State v. Mustakeen and others 14/48
38.PW12 ASI Narender Pal. This witness has deposed that on 28.06.2003, copy of DD No.44B Ex.PW12/A was assigned to him for action in the matter and he reached at House No.131/30, near Lovely Home, 66 Futa Road, Maujpur, Delhi, there Pankaj Gandhi met him. This witness has recorded his statement Ex.PW3/A and rukka Ex.PW4/A and sent it for registration of case through Ct. Banwari Lal and thereafter, investigation of the case was assigned to S.I. Manoj.
39.PW13 Ct. Rattan Singh. This witness had taken nine photographs of the place of incident at the instance of I.O. This witness has proved positive photographs vide Ex.PW13/A1 to A9 and negative of the photographs vide Ex.PW13/B1 to B9.
40.In his cross examination by ld. defence counsel, this witness had denied to the suggestion that he had not visited the spot and not taken any photographs or that he is deposing falsely.
41.PW14 Ms. Barkha Gupta, Ld. ASJ, Rohini Courts, Delhi. This witness has proved TIP proceedings of accused persons namely Mustakeen @Bhura, Arif Shafi, Mohd. Yusuf, Shamsher and Imran vide Ex.PW14/A, PW14/C, PW14/E, PW14/G and PW14/J respectively wherein accused persons had refused to take part in TIP proceedings. This witness has also proved her certificate about TIP proceedings vide Ex.PW14/B, PW14/D, PW14/F, PW14/H and PW14/K respectively.
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42.PW15 HC Yashbir. This witness has brought original register No.19. This witness has deposed that MHC(M) had deposited the case property in the malkhana vide serial No.2191 of register No.19. This witness has proved photocopy of the same vide Ex.PW15/A.
43.PW16 HC Dal Singh is a MHC(M). This witness has deposed that on 03.07.2003, S.I. Lekh Raj had deposited four pullandas in sealed condition with the seal of LRS in case FIR No.265/2003 police station Gokalpuri and he had deposited the same in the malkhana Gokalpuri vide serial No.2550 of register No. 19 and S.I. Lekh Raj had also deposited personal search articles of accused Shamsher and Mustkeen in the malkhana and he had deposited the same in the malkhana at same serial number. This witness has proved the entry in the register No.19 vide Ex.PW16/A.
44.This witness has further deposed that on 10.07.2003 aforesaid four pullandas in sealed condition with the seal of LRS were transferred to the police station Bhajanpura in case FIR No.203/2003 police station Bhajanpura u/s 392/397/411/34 IPC through S.I. Manoj Kumar and he had made entries in this respect vide Ex.PW16/A.
45.This witness has further deposed that on 04.07.2003, S.I. Suman Kumar had deposited two pullandas in sealed condition with the seal of SK in the malkhana of police station Gokalpuri in case FIR No.269/2003 of police station Gokalpuri and SC No.97/2012 State v. Mustakeen and others 16/48 he had deposited the same in malkhana vide serial No.2552 of register No.19. This witness has further deposed that S.I. Suman Kumar had also deposited personal search article of accused Arif in the malkhana and deposited the same in the malkhana vide serial No.2552 and he had made entries in the register No.19 vide Ex.PW16/B.
46.This witness has further deposed that on 20.08.2003, pullanda of katta and cartridge were sent to CFSL Kolkata through Ct. Md. Illyas vide RC No.77/21 and he had made entries in this respect on Ex.PW16/B. This witness has further deposed that on 10.07.2003 the pullanda containing mobile phones, charger with wire, and dummy mobiles with the seal of SK were sent to police station Bhajanpura in case FIR No.203/03 of police station Bhajanpura through S.I. Manoj Kumar and he had made entries in this respect vide Ex.PW16/B.
47.PW17 Inspector Suman Kumar Sharma is a material witness being 1st I.O. This witness has deposed that on 04.07.2003 he along with Ct. Shyam Lal and Ct. Dinesh were present in the area for patrolling and at about 2:00 p.m. he had received a secret information that Mustakeen who was already apprehended and another accused of his gang would come from Nehru Vihar and would go towards Chand Bagh Pulia and they can be apprehended if raid is conducted. Accordingly, on reaching Chand Bagh Pulia, Nakabandi was done there and on the point of secret informer, accused Arif was apprehended whose name was revealed later on. This witness has recovered one loaded desi katta and one live cartridge from the SC No.97/2012 State v. Mustakeen and others 17/48 right side pocket of accused Arif. This witness has also recovered one dirty polythene bag which was containing old mobile phones, dummy phones, chargers, cards, dori and cash cards of different values. This witness has deposed that there were 11 used mobile phones and dummy phones were of different size and colour and the details of the articles recovered from the polythene is mentioned in the document Ex.PW5/B and case property was sealed with the seal of SK after converting the same into a cloth parcel. This witness has further deposed that the proceedings regarding the katta were recorded separately. This witness had prepared the rukka in case FIR No.269/2003 police station Gokalpuri which was sent to police station through Ct. Dinesh for registration of the case. Thereafter, Ct. Dinesh along with ASI Tara Dutt reached at the spot and further investigation in this case was handed over to ASI Tara Dutt.
48.This witness has correctly identified the case property which was recovered from accused Arif. This witness had identified case property i.e. 12 dummy phones Ex.PW17/1 to PW17/12, two chargers make Motorola & Samsung 2400 Ex. P.18 & P.19, 11 strips of mobile phone Ex.PW20/1 to 11, 26 recharge coupons valuing different amount Ex.P.21/1 to 26, 33 recharge coupons of different value Ex.P.22/1 to 33, 17 envelops Ex.P23/1 to 17, 17 recharge coupons of trumps Ex.P24/1 to 17 & 11 old mobile phones i.e. Alkatel Ex.P5, Bosch Ex.P8, two motorola phones Ex.P10, two panasonic phones Ex.P12 & 16, one Samsung mobile Ex.P17, two Sony Ericson mobile phones Ex.P7 & P9 and one Siemen mobile phone Ex.P15 and one mobile phone was of without mark Ex.P18.
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49.In his cross examination by Sh. R.K. Kochar, Ld. counsel for accused Arif, this witness has deposed that complainant had not produced any document pertaining to ownership of recovered case property nor I.O. had produced any such document. This witness had denied to the suggestion that no recovery had been effected at the instance of accused Arif or that he was lifted from his house on 03.07.2003 or that he was detained illegally. This witness has further deposed that he had not recorded statement of any of the raiding party members till the investigation of this case remained in his hand. This witness had denied to the suggestion that he is deposing falsely on the fact that accused Arif had not been arrested in the present case or that he had obtained his signatures on some blank papers forcibly.
50.PW18 Inspector Lekh Raj Singh. This witness has deposed that he had arrested four accused persons namely Imran, Mohd. Yusuf, Shamsher and Mohd. Mustakeen in case FIR No.265/2003 u/s 411/34 IPC, police station Gokalpuri and accused persons had disclosed about their involvement in present case FIR No. 203/2003, police station Bhajanpura.
51.This witness has further deposed that on 04.07.2003, he had handed over the copy of documents including disclosure statements and seizure memos to S.I. Manoj Kumar. This witness has proved disclosure statement of accused Imran vide mark PW18/A, of accused Mustkeen vide mark PW18/B, of accused Shamsher vide mark PW18/C and that of accused Mohd. Yusuf vide mark PW18/D. This witness SC No.97/2012 State v. Mustakeen and others 19/48 has also proved photocopy of the seizure memo of the mobile phone recovered from accused Imran and Mohd. Yusuf vide mark PW18/E and PW18/F respectively and photocopy of the mobile phone recovered from accused Mustakeen and accused Shamsher vide mark X8 and X9 respectively. This witness has proved carbon copy of the pointing out memo vide Ex.PW8/A.
52.In his cross examination by Sh. N.S. Raghav, ld. counsel for accused Mustakeen, this witness has deposed that he had not stated in his statement the fact of the recovery of the mobile phone from accused Mustakeen. This witness admits that area of Brijpuri pulia is surrounded by shops and thoroughfare and no public person had joined the proceeding on his request. This witness has further deposed that he had not called any public person from market. This witness has further deposed that recovery of mobile phone had not been mentioned in personal search memo. This witness has further deposed that he had not signed the arrest memo of accused Mustakeen in the present case.
53.PW19 S.I. Manoj Bhatia is a material witness being I.O. This witness after registration of FIR alongwith Ct. Banwari reached at spot i.e. Lovely Marriage Home, 66 foota Road, Maujpur, Delhi where complainant Pankaj Gandhi met them. This witness had prepared the site plan Ex. PW 19/A at the instance of complainant. This witness had inspected the site and recorded the statement of member of crime team. This witness had proved the report prepared by crime team official vide Ex. PW 6/A. SC No.97/2012 State v. Mustakeen and others 20/48
54.During the course of investigation, on 29.06.2003 this witenss had reached at the spot along with lady Ct. Manju, where Pankaj Gandhi complainant produce bill of mobile which was taken into possession vide seizure memo vide Ex. PW 1/A. The complainant had also told him that at the time of incident two persons were standing outside the door near gate and supplementary statement of complainant was recorded in this regard. This witness had sent one lady Anju employee (injured in this case) to GTB Hospital for her medical examination.
55.During investigation on the basis of facts and circumstances gathered this witness had incorporated Section 394 and 395 IPC in the present case and on 04.07.2003 he reached at Police Station Gokal Puri along with Ct. Ratan on receiving the information that the accused persons were involved in the present case had been apprehended by the police officials of Police Station Gokal Puri where he met with SI Lekh Raj who was investigating the case FIR No.265/03 in which four accused persons of this case were apprehended. This witness had collected the photocopies of memos from SI Lekh Raj. This witness had arrested four accused persons namely Imran, Md. Yusuf, Mustkeen and Shamsher and thereafter, disclosure statement of accused persons were recorded by him. This witness has proved arrest memo of Imran Ex. PW 11/A1 , of Yusuf Ex. PW 11/A2 , of Shamsher Ex. PW 11/A3 and of Mustkeen Ex. PW 11/A4. This witness has also proved disclosure statements of Shamsher Ex. PW 19/B, of accused Imran Ex. PW 19/C , of Md. Yusuf Ex. PW 19/D and of Mustkeen Ex. PW 19/E. This witness had produced all the accused persons muffled face before court concerned SC No.97/2012 State v. Mustakeen and others 21/48 and accused was sent to JC for one day.
56.During the course of investigation, on 05.07.2003 on receiving information that other accused persons were apprehended of this case, he along with Ct. Ratan reached at Police Station Gokal Puri and met with ASI Tara Dutt and collected documents of the case FIR No. 269/03 in which accused Arif was arrested in case U/s 25/54/59 Arms Act. Thereafter, this witness had arrested accused Arif in this case vide arrest memo Ex.PW19/F and his disclosure statement was recorded vide Ex.PW19/G and produced the accused in muffled face before court concerned from there he was sent to JC.
57.During investigation case property in this case was got transferred to Police Station Bhajan Pura from Police Station Gokal Puri and this had moved an application for judicial TIP of accused persons and during TIP all the accused persons had refused to participate in TIP proceedings and he had collected the copies of TIP proceedings by application.
58.During the course of investigation, on 17.07.2003 this witness had moved an application for police custody remand of accused Md. Yusuf, Shamsher and Arif and his application was allowed by ld. MM and he granted one day PC for all the three accused and he had tried best to get recover the remaining robbed articles and to apprehend the other accused persons, but no recovery could be effected at the instance of accused persons nor any other accused persons could be apprehended SC No.97/2012 State v. Mustakeen and others 22/48 on their instance. During investigation, this witness had recorded statements of PWs from time to time and after completion of investigation I filed chargesheet.
59.In his cross examination by ld. defence counsel, this witness has deposed that he had not mentioned in the charge sheet that he had produced all the accused persons in muffled face before court concerned. This witness had denied to the suggestion that he had not mentioned in the charge sheet that he had produced accused persons in muffled face before court concerned as their faces were not muffled at that time. This witness had denied to the suggestion that accused persons had refused to accept the TIP proceedings as he had shown them to the PWs and taken their photographs at Police Station. This witness has further deposed that complainant had not told him that a person who had entered firstly in his shop was about the age of 26 years old with blackish colour and small hair. This witness has further deposed that he cannot say if Anju had told the doctor that injuries sustained by her were self inflected injuries. This witness had denied to the suggestion that Anju had told him that no one had caused her injuries. This witness had denied to the suggestion that PW Anju deposed falsely before the court at his instance or that he had manipulated the supplementary statement of PW Pankaj on the fact that two persons remain outside the shop or that old mobile phones were being sold at the aforesaid shop. This witness admits that no recovery of weapon had been effected at the instance any of accused persons in the present case and mobile phone ericson 100 make Sony is easily available in open market.
SC No.97/2012
State v. Mustakeen and others 23/48
60.This witness had denied to the suggestion that mobile phone upon all the accused persons have been planted. This witness has denied to the suggestion that none of the accused had made their disclosure statements or that he obtained their signature on blank paper or same has been used in form of disclosure statement. This witness admits that place of occurrence was in his knowledge before the arrest of accused persons being the IO.
STATEMENT OF ACCUSED PERSONS U/S 313 CR. P.C.:
61.After prosecution evidence, statement of accused persons u/s 313 Cr. P.C. were recorded wherein accused persons namely Mustkeen, Imran, Mohd. Yusuf, Asif and Shamsher had denied all circumstances and evidence put to them and claimed to be innocent and have been implicated falsely after lifted by the police from their houses. Accused Arif stated that nothing was recovered either from his possession or at his instance and police had obtained his signatures forcibly on some blank papers. Accused Shamsher, Imran Khan and Mohd. Yusuf stated that they were not present at the spot at the time of alleged incident. Accused Mustakeen stated that he has been falsely implicated in the present case by police on the asking of their stooges. Accused persons had preferred to lead any D.E. but they could not produce defence witnesses. Hence, D.E. was closed.
62.Thereafter, case was fixed for arguments.
SC No.97/2012
State v. Mustakeen and others 24/48
ARGUMENTS:
63.Ld. APP for the State submits that all the accused persons had been charged for the offence u/s 392/397/411 IPC & 25/27 Arms Act.
64.Ld. APP for the State further submitted that there are two eyewitnesses i.e. PW2 Pankaj Gandhi and PW3 Anju and they have fully supported the case of prosecution and they had identified all the accused persons. PW2 and PW3 are the eyewitnesses of the incident and they have fully supported the case of prosecution. In their examination PW2 and PW3 testified the entire incident and also identified all the accused persons.
65.Ld. APP for the State further submitted that PW3 had also identified the stolen articles recovered from the accused persons.
66.Ld. APP for the State further submitted that the cross examination of PW2 was conducted belatedly after a gap of five years and therefore, she could recall the facts of this case and due to that she had deposed that no incident had taken place during her employment with PW3.
67.Ld. APP for the State has further submitted that at the instance of accused Arif recovery of 12 mobile phones, seven threads (wires) used for suspending the mobile phones with neck or other part of the body, two charger and 60 cash cards (out of which 33 were of Airtel and balance of were Idea company) were made. SC No.97/2012
State v. Mustakeen and others 25/48
68.Ld. APP for the State further stated that PW2 Anju had not stated in her statement that she had seen accused persons after their arrest and before the TIP.
69.Ld. APP for the State further submitted that all the accused persons had refused to undergo TIP proceedings.
70.Ld. APP for the State further submitted that testimony of material PWs and I.O. is corroborated. On these grounds, ld. APP for the State has prayed for maximum sentence to all the accused persons.
71.On the other hand, ld. counsel for accused Mustakeen submits that in DD entry No.44B recorded at 3:45 p.m. with police station Bhajanpura it has been mentioned that in front of Anupam Market Lovely Marriage Home Maujpur Chowk 89 men came and ran away after snatching mobile and cash but in the FIR there is a role of four persons and when PW3 examined before the court he has stated that they were five in number. Time and again PW3 has remained to change his statement. The statement of such witness cannot be reliable.
72.Ld. counsel for accused Mustakeen further submits that statement of Anju had not been recorded if she had sustained injuries she must have been examined. No wire of CCTV camera had been recovered. Neither clothes by which mouths of Anju had been tied had not been recovered.
SC No.97/2012
State v. Mustakeen and others 26/48
73.Ld. counsel for accused Mustakeen further submits that accused persons had been arrested after 34 days of incident. Fact of closing the door of shop is not fact of prosecution case. PW3 had stated that accused Mustakeen had been with him and before court states that accused Mustakeen and Arif had been with him. Sh. Raj Kumar Gandhi is not witness who had untied Anju.
74.Ld. counsel for accused Mustakeen further submits that no original bills of mobile phone had been provided to I.O. which were in photostate copy and same had not been got verified by I.O. about its genuineness. Signature of PW3 are not on site plan. During cross examination by counsel for accused Imran, PW3 states that accused were seen by him for first time and in TIP at Tihar Jail and thereafter, in court.
75.Ld. counsel for accused Mustakeen further submits that in her deposition PW2 Anju states that Pankaj Gandhi had told the accused persons that second hand mobile phone would be available at the cost of Rs.3,000/ whereas Pankaj Gandhi has stated that he does not deal in old mobile phones. Statement of PW2 has been confronted by Sh. S.S. Sisodia, Ld. counsel for accused Imran.
76.Ld. counsel for accused Mustakeen further submits that PW10 had wrongly identified accused Mustakeen to be Arif before the court. All the accused persons had been arrested at pulia, Gokalpuri that means official of police station Bhajanpura had been aware the place of incident in case FIR No.265/2003. SC No.97/2012
State v. Mustakeen and others 27/48
77.Ld. counsel for accused Mustakeen further submits that PW18 had not shown the recovery of mobile in personal search of accused Mustakeen. DD No. is 44B (DD 41 is wrongly mentioned).
78.Ld. counsel for accused Mustakeen further submits that complainant had not produced any document pertaining to the ownership of recovered case property.
79.Ld. counsel for accused Mustakeen further submits that PW3 had stated that accused persons had been shown to him at police station.
80.Ld. counsel for accused Mustakeen further submits that it is very strange to see that no rope from which the complainant and Km. Anju were tied by the accused, the wire of camera and mobile phones which were cut by the alleged accused as well as the piece of cloth which was gauzed into the mouth of Km. Anju were not taken into possession. Nobody knows as to what type of investigation was carried out by I.O. PW19 S.I. Manoj Bhatia has stated before the court that the accused persons were produced in muffled face but when this witness was asked whether he has mentioned this facts in the charge sheet or not he has told that he has not mentioned. Meaning thereby that the accused persons were not produced in muffled face. Even PW3 Pankaj Gandhi has stated that the accused were shown to him in police station. PW19 S.I. Bhatia has further stated that after reaching at police station Gokalpuri on 04.07.2003 he muffled the faces of accused but PW SC No.97/2012 State v. Mustakeen and others 28/48 Lekhraj is totally silent on this point.
81.Ld. counsel for accused Mustakeen further argued that in regard the theory of prosecution when PW19 S.I. Manoj Bhatia asked about the description of person who entered into shop 1st and put katta on the temple of complainant he has admitted the fact of FIR and when the colour of accused Mustakeen asked he has told that his colour is fair not blackish. PW18 also admitted that Sony Ericson100 are easily available in the market.
82.Ld. counsel for accused Mustakeen further argued that there are large number of discrepancy in prosecution case as well as in testimony of prosecution witness and recovery in itself looks a planted one since such type of articles are easily available in the market.
83.Ld. counsel for accused Mustakeen further argued that in the present case though the public persons were easily available to the police but non joining of public witnesses at the time of recovery as well as the time of disclosure statements and the pointing out memo.
84.Ld. counsel for accused Mustakeen further argued that as per the prosecution story in the present case the countrywide pistol, knifes and bags were used but no recovery of any weapon used by the assailants and the rope which was used to tie the hands and feet of complainant as well as his employee Km. Anju have been SC No.97/2012 State v. Mustakeen and others 29/48 made.
85.Sh. S.S. Sisodia, Ld. counsel for accused Imran argued that in case FIR No. 265/2003, all the accused persons had been discharged from the court of Ld. MM.
86.Ld. counsel for accused Imran further argued that as per rukka in case FIR No. 203/2003, there were four boys mentioned but in statement of Pankaj Gandhi Ex.PW3/DA five boys were stated by him in court complex to I.O.
87.Ld. counsel for accused Imran further argued that MLC of PW Anju reflects about the injury that there is possibility of self inflicted injury. PW11 Ct. Ratan has deposed that accused Imran present before the court was not arrested from lockup of police station Gokulpuri. Ownership of robbed mobile phones in respect of new mobile phones have not been brought on record by prosecution. No camera or wire of CCTV from shop of Pankaj Gandhi has been seized by I.O. Hence, prosecution has been failed to prove its case beyond reasonable doubt against accused Imran.
88.Sh. R.K. Kochar, Ld. counsel for accused Arif has argued that prosecution case is relied upon two material witnesses i.e. PW2 Anju and PW3 Pankaj Gandhi. There are injuries upon PW Anju but this PW had stated that she had not suffered any injury. This PW had gone to say that she cannot identify the accused Arif in the present case. MLC of injured Anju suggested the injury was self inflicted. This SC No.97/2012 State v. Mustakeen and others 30/48 witness has further deposed that no incident took place in her presence during her employment with PW Pankaj Gandhi.
89.Ld. counsel for accused Arif pointed out that on 19.04.2005 this PW had stated that she had deposed at the instance of police. This PW had not made any statement to police. Police had obtained her signature on some blank papers. This PW has further stated that robbers were in muffled face.
90.Ld. counsel for accused Arif has further pointed out towards cross examination of this PW by Ld. APP for the State.
91.Ld. counsel for accused Arif further argued that PW3 Pankaj Gandhi has identified accused Mustakeen and presence of accused Arif has been pointed by PW3 but he had not done anything at the spot. Father of PW3 has not been made as prosecution witness.
92.Ld. counsel for accused Arif has pointed out towards cross examination of PW3 done by Sh. Sisodia wherein PW3 has deposed that no document of employment of PW Anju had been handed over to police.
93.Ld. counsel for accused Arif further argued that if Anju was the injured, she must have been made as complainant in this case. Time of incident on 28.06.2003 at 3:30 p.m. to 3:45 p.m. but MLC of Anju was prepared on 29.06.2003 at 3:25 p.m. SC No.97/2012 State v. Mustakeen and others 31/48 Opinion of doctor on MLC of Anju suggest that injuries cannot be ruled out to be self inflicted. No PW had made PCR call.
94.Ld. counsel for accused Arif further argued that DD No.44B handed over to ASI Daya Prakash does not disclose the phone number of caller. Tying material had not been recovered by the I.O. Not corroborated by the version of PW3. PW3 had not handed over the bills of purchasing of mobile and recharge coupons of any mobile phone company. No mobile phone operation has been examined to prove the transaction of recharge coupons. PW3 had not handed over any mobile phone register to I.O. Hence, all the mobile phones are planted.
95.Ld. counsel for accused Arif further argued that accused Mustakeen was apprehended on 03.07.2003 and accused Arif was apprehended on 04.07.2003 whereas PW3 states that on 02.07.2003 entire case property had been shown to him. It means the case property was recovered prior to arrest of accused Arif and Mustakeen.
96.Ld. counsel for accused Arif further argued that no public person was made as witness of alleged incident.
97.Ld. counsel for accused Arif has pointed out towards deposition of PW3 wherein he stated that the accused persons were seen by him at the time of incident. Thereafter, during TIP and further in the court. Since TIP had been refused by SC No.97/2012 State v. Mustakeen and others 32/48 accused persons then how PW3 had identified them in TIP at Tihar Jail.
98.Ld. counsel for accused Arif further argued that PW2 Anju had stated in her deposition that accused Arif was not present at the spot and even in her cross examination by the State, this witness had denied to the suggestion of Ld. APP for the State. This witness in her cross examination by Sh. A.K. Sharma, Amicus Curiae for accused Yusuf has deposed that no incident took place during her employment with Pankaj Gandhi and on 19.04.2005 she had deposed at the instance of police and she had identified the accused persons on the previous date in the court, at the instance of police. This witness further admits that Pankaj told her after some days of the incident that the robbers were muffled face at the time of the incident and he further told her that he could not identified the robbers as they were muffled faces.
99.Ld. counsel for accused Arif further argued that PW3 Pankaj Gandhi in his cross examination has deposed that name of accused Arif was disclosed to him by the police on 19.07.2006 when his statement was recorded in the court and he cannot tell whether the faces of the accused persons were covered when they entered in the shop and he cannot tell whether the face of accused Arif was also covered at that time or not and faces of accused persons were not covered outside the shop. PW3 further states that he had seen his robbed articles at police station on 02.07.2003 whereas as per prosecution police had recovered the robbed articles on 03.07.2003 and 04.07.2003. PW3 further states that he had not seen the accused SC No.97/2012 State v. Mustakeen and others 33/48 persons at the police station at that time. PW3 further states that he had told the police that when the accused persons came inside they had covered the faces with handkerchiefs and police had stated him not to tell this fact otherwise "Ishse Tumahara Case Kharab Ho Jaayega" and he had not read those papers as he was under the impression whatever have been written by the police was correct.
100.Ld. counsel for accused persons has relied upon the following citations :
i. Golla Jalla Reddy and others v. State of Andhra Pradesh, 1996 CRI.L.J.2470, ii. Subhash v. State of Haryana, 2011 (1) JCC 41, iii. Mohd. Saleem @ Salim v. State, 2012 (3)JCC 1849, iv. Dr. Jhamman Lal v. State (Delhi Administrators), 2011 (4) JCC 2932, v. Satish Kumar v. State, 1995 (3) C.C. Cases 252 (H.C.).
vi. Tinkoo and Others v. State 2012 (1) JCC 730 Delhi.
101.On these grounds, ld. counsel for accused persons have prayed for acquittal of accused persons from the charges.
PERUSAL OF RECORD:
102.Arguments heard. Record perused. On perusal of record it is revealed that present case was registered on the statement of complainant PW3 Pankaj Gandhi Ex.PW3/A and accordingly, FIR Ex.PW7/A u/s 392/397/34 IPC was registered.
103.On perusal of record, it is revealed that as per statement of PW1 accused persons SC No.97/2012 State v. Mustakeen and others 34/48 namely Mustkeen and Arif Imran, Shamsher and Mohd. Yusuf had committed robbery of the cash amount of Rs.5,000/ lying in the galla as also cash Rs.3,000/ lying in the draw of the Computer table in the shop and they had also committed robbery of all the new and old mobile phones, chargers of the mobile phones and other articles lying in his shop by putting them in the green coloured big bag brought by them along with them to his shop and thereafter, accused persons had left his shop leaving himself and his worker Anju lying tied therein by threatening them that in case they told anybody regarding them or the incident they would shoot them to death and accused persons had left the shop at that time by closing the door of the shop.
104.On perusal of record, it is revealed that on 03.07.2003 accused Mustakeen and other three accused Shamsher, Imran and Yusuf were arrested by the police of Gokalpuri u/s 411/34 IPC in case FIR No.265/2003 and in that that case S.I. Lekh Raj recorded the disclosure statement of the accused and informed police station Bhajanpura regarding their arrest vide DD No.74B and on 04.07.2003 S.I. Manoj Bhatia went to police station Gokalpuri and arrested the accused in present case and brought them to police station Bhajanpura.
105.On perusal of record, it is further revealed that accused Imran was arrested vide arrest memo Ex.PW11/A1, accused Yusuf vide Ex.PW11/A2, accused Shamsher vide Ex.PW11/A3 and accused Mustakeen vide Ex.PW11/A4 and disclosure statements were recorded of accused Shamsher vide Ex.PW19/B, of Imran SC No.97/2012 State v. Mustakeen and others 35/48 Ex.PW19/C, of Md. Yusuf Ex.PW19/D and of Mustakeen vide Ex.PW19/E.
106.On perusal of record, it is further revealed that accused Arif was arrested in case FIR No.269/2003 Police Station Gokalpuri, S.I. Manoj Bhatia went to police station and met ASI Tara Dutt and also interrogated him and arrested vide arrest memo Ex.PW19/F and his disclosure statement was recorded vide Ex.PW19/G and pursuance of his disclosure statement, accused Arif led the police party to his house i.e. House No.F69, Gali No.6, Bhagirathi Vihar, Joharipur, Delhi and got recovered 12 mobile phones, 7 threads/wires hanging mobile phone with neck or other parts of the body, mobile chargers and 60 cash cards (out of which 33 were of Airtel and the rest of Idea company) which wee kept in a polythene bag and same were seized vide seizure memo Ex.PW5/B.
107.On perusal of record, it is further revealed that during the course of investigation, I.O. had prepared the site plan Ex.19/A at the instance of complainant but site plan does not bear his signature.
108.On perusal of record, it is further revealed that during the course of investigation, all accused persons had refused to join the TIP proceedings on the ground that they had been shown to the witnesses and their photographs were taken. I.O. had obtained the copy of the TIP refusal proceedings. Ms. Barkha Gupta, Ld. ASJ has proved TIP proceedings of accused persons namely Mustakeen @Bhura, Arif Shafi, Mohd. Yusuf, Shamsher and Imran vide Ex.PW14/A, PW14/C, PW14/E, SC No.97/2012 State v. Mustakeen and others 36/48 PW14/G and PW14/J respectively wherein accused persons had refused to take part in TIP proceedings.
109.On perusal, it is further revealed that accused persons in their statement u/s 313 Cr. P.C. have stated that they are innocent and they have been implicated falsely after lifted by the police from their houses.
110.Before reaching at the conclusion let the relevant sections be reproduced which are as under: Section 392 IPC "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 find; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years."
Ingredients of offence. The essential ingredients of the offence under sec. 392 are as follows:
1) Accused committed theft as defined in sec. 378 in the process;
2) Accused caused or attempted to cause to some persons
i) death, hurt or wrongful restraint;
ii) fear of death or of instant hurt or instant wrongful restraint;
3) Accused did either act
a) in committing such theft, or
b) in order to commit theft, or
c) in carrying away or attempting to carry away the property obtained by such theft.
Section 397 IPC "Robbery, or dacoity, with attempt to cause death or grievous hurt - If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or SC No.97/2012 State v. Mustakeen and others 37/48 attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."
Ingredients of offence. The essential ingredients of the offence under section 397 are as follows:
1) Accused committed robbery or dacoity;
2) While committing such robbery or dacoity the accused
a) used a deadly weapon;
b) caused grievous hurt to any person;
c) attempted to cause death or grievous hurt to any person.
Section 411 IPC :
"Dishonestly receiving stolen property Whoever dishonestly receives or retains any stolen propety, knowing or having rason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
Sec.34 IPC: "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
Careful perusal of the section 34 IPC reveals the following important ingredients :
i. That there must be a criminal act.
ii.The act must have been done by several persons in furtherance of their common intention.
111.It has been observed in 'Harish Chandra Vs State of UP - AIR 1976 SC 1430' that :
"Robbery The offence of robbery is defined in section 390 IPC. The robbery is punishable under section 392 IPC. When force is used to enable another to carry away the booty, it amounts to robbery."SC No.97/2012
State v. Mustakeen and others 38/48
112.Since the present case has been registered on the statement of complainant, Pankaj Gandhi Ex.PW3/A. PW2 and PW3 are the material witnesses being eyewitnesses. Complainant had correctly identified the accused persons and robbed articles.
113.The TIP proceedings of accused persons namely Mustakeen, Arif, Mohd. Yusuf and Shamsher except accused Imran was conducted on 15.07.2003 which they had refused to participate in TIP proceedings by saying that they had been shown to the witnesses at police station. TIP of accused Imran was conducted on 19.07.2003 where he had also refused to participate in TIP proceedings by saying that he had been shown to the witnesses at police station.
114.As per complaint there was no fact of dummy mobile phones. Only complainant had stated that accused persons had robbed 15 new mobile phone and 15 under repair mobile phones, Rs.5,000/ in cash, mobile recharge coupons of Rs.2,000/ and Rs.3,000/ in cash from the mandir near the computer.
115.As per the case of prosecution, police had recovered 12 dummy mobile phones at the instance of accused Arif from his house. In his disclosure, accused Arif had not disclosed that he can get recovered 12 dummy mobile phones from his house.
There is no explanation as to how the I.O. came to know about the dummy mobile phones and address of accused Arif which he had not disclosed in his disclosure SC No.97/2012 State v. Mustakeen and others 39/48 statement.
116.Police had not recovered rope by which accused persons had tied PW2 and PW3 in the shop nor police had recovered cloth by which accused persons had tied mouth of complainant. It is pertinent to mention here that shop of complainant was at the ground floor whereas his residence was at upper floor. After the incident father of complainant had come and untied the complainant but police had not made his father as witness.
117.As per the complainant, CCTV cameras were installed in his shop and accused had cut the wire of the same but police had neither seized CCTV camera nor its wire. Very interestingly no neighbour could come out after hearing their noise whereas the case of prosecution is that PW Anju has raised alarm during the course of incident.
118.Since in the present case there is no independent witness of recovery effected at the instance of accused persons. Hence, it cannot be said that the articles recovered from accused persons in pursuance of his disclosure statement were the property stolen by the accused from the shop of complainant.
119.In the absence of any identification mark on the incriminating articles alleged to have been recovered from the accused in pursuance of their disclosure statements, it cannot be said that these articles actually belonged to the complainant. It is not SC No.97/2012 State v. Mustakeen and others 40/48 proved from the statement of PW3 Pankaj Gandhi that incriminating articles were got mixed with a number of similar types of the articles. Hence, as to the matter of presumption no fact on record could be brought by prosecution to presume certain facts.
120.Hon'ble High Court of Delhi in case titled as 'Syam Sunder and others Vs. State, CRL. A. 233/2008', wherein it has held that :
In order to prove the offence under Section 397 IPC the prosecution must establish:
i) commission of robbery or dacoity;
ii) that the accused used the deadly weapon; or caused grievous hurt; or attempted to cause death or grievous hurt and
iii) the above acts were done during the commission of robbery or dacoity.
121.Moreover, there is no public witnesses to any of the recovery except official witnesses and complainant. Therefore, conviction for the offences u/s 392, and 397 IPC solely on the testimony of police officials will result into miscarriage of justice. Hon'ble Supreme Court in case titled as 'Sans Pal Singh Vs. State of Delhi 1999 Cri. L.J.19' has held that :
"Recovery of country made pistol and live cartridge from the pocket of the accused based only on evidence of police - No public witnesses, even though available, associated to witness recovery Conviction Cannot be maintained. Inter alia, it has been urged by learned counsel for the appellant that it would not be safe to maintain the conviction because the recovery of the illicit arms did not inspire confidence, supported as it is, by the evidence of two police officials alone, unassociated by the testimony of any independent witness. It has also been urged that witnesses of the public were available and neither were SC No.97/2012 State v. Mustakeen and others 41/48 they associated nor was any explanation given at the trial as to why they were not associated. From the evidence of PW5 HC Sat Pal singh, it is clear that the police party did not ask any public witness to be witness at the time of search of the accused. Likewise, PW6 SI Mahipal Singh has also stated that no public witness was joined at the time of the search of the accused even though a number of persons were passing through at the time when the recovery was being effected. It is thus evident that public witnesses were available and could have been associated to witness the recovery. It would have been a different matter altogether had there been no public witness available or none was willing to associate. Here, as said before, public witnesses were available but no explanation on these lines is forthcoming. Thus, we got to the view that it would be unsafe to maintain the conviction of the appellant for the offence charged. We, therefore, order his acquittal. He is in jail. He be set at liberty forthwith."
122.Hon'ble High Court of Delhi in case 'Pritam Singh Vs. State cited as 1998(1) JCC (Delhi) 94' where it has been observed that: "the recovery should be made in presence of independent witnesses if available and the search and seizure in compliance of section 100(4) of Cr. P. C., would vitiate the trial."
In the case titled 'Nanak Chand vs. State of Delhi 1991Journal of Crl. Cases, Delhi High Court, page no.1(1991 JCC 1)' has been observed that : '...recoveries proved by the police official who differ on the timings ............................... the recovery was effected from the place that houses of both the sides and yet no witness from the public has been produced, not that in every case the police officials are to be treated unworthy of reliance but their failure to join witnesses from public special when they are available at their elbow, may, as in the present case cast doubt...'...officials have churned out a stereo typed version with material difference of timings, it is a rejection needs no Napaleon on the bridge at Arcola' SC No.97/2012 State v. Mustakeen and others 42/48
123.Mere saying that PW2 Anju has been cross examined after a gap of five years and hence, she had not disclosed about the incident. It is true that PW Anju had been examined after a gap of five years but at least a person who had faced any incident he can have in mind about the picture of incident. Even though he or she cannot tell about the exact date of incident but atleast it may be expected that he can disclosed about the incident which PW2 Anju had refused that in his presence during her employment with PW3 any incident had happened with her there.
124.Testimony of PW complainant and her employee PW Anju are not consistent with each other. Even recovery proceedings of police are also not corroborated. In disclosure statement accused Arif had stated that he can get recovered mobile phones but he had not stated that he can get recovered dummy mobile phones.
125.Further, accused persons had refused to join TIP proceedings on the ground that they had been shown to the witnesses at police station after their arrest and before their arrest. This fact has been admitted by PW3 Pankaj Gandhi in his cross examination that accused persons had been shown to him at police station. Hence, refusal of accused persons for TIP proceedings is justified.
126.Further, accused persons namely Mustakeen, Imran, Mohd. Yusuf and Shamsher were arrested in case FIR No.265/2003 u/s 411 IPC by Inspector Lekh Raj at police station Gokalpuri on their disclosure regarding involvement in the present SC No.97/2012 State v. Mustakeen and others 43/48 case and they had been arrested by I.O. of this case S.I. Manoj Bhatia on 04.07.2003. Accused Arif was arrested in case FIR No.269/2003 u/s 25/54/59 Arms Act by ASI Tara Dutt at police station Gokalpuri on his disclosure statement regarding involvement in the present case and he had been arrested by I.O. S.I. Manoj Bhatia on 05.07.2003. There is no clue as to how I.O.s in FIR No.265/2003 and FIR No.269/2003 u/s 25 Arms Act had come to know that certain accused was involved in the present case.
127.PW5 in his testimony has stated that accused Arif had got recovered 12 mobile phones, seven threads (wires) used for suspending the mobile phones with neck or other part of the body, two charger and 60 cash cards (out of which 33 were of Airtel and balance of were Idea company) but this witness had not stated dummy mobile phones were recovered from the possession of accused or at his instance. Since in disclosure statement of accused Arif Ex.PW5/A in case FIR No.269/2003 wherein he had disclosed that he can get recovered stolen mobile phone. Moreover, it is stated by accused Arif in that disclosure statement that he had been arrested while he was going to sell stolen mobile phones.
128.If aforesaid disclosure of accused Arif is presumed to gospel truth of prosecution then also disclosure statement of accused Arif had not disclosed that he can get recovered stolen mobile phones. Moreover, he had stated that he was going to sell the robbed articles and police had apprehended him whereas as per testimony of PW17 S.I. Suman Kumar accused Arif was apprehended on the pointing out of SC No.97/2012 State v. Mustakeen and others 44/48 secret informer at Chand Bagh pulia while he was carrying a dirty polythene bag of white colour to sell the robbed articles.
129.Further, seizure memo Ex.PW5/B also does not reflect about any recovery of Katta or live cartridge from the possession of accused Arif on 04.07.2003.
130.As per complaint fact of dummy mobile phone has not been mentioned in the complaint. Hence, recovery of dummy mobile phones at the instance of accused Arif has no relevance.
131.Further, photostate of mobile bills Ex.PW1/A were produced before I.O. but no original bills of mobile phone had been provided to I.O. and same had not been got verified by I.O. about its genuineness.
132.Further, there is no signature of PW3 on site plan Ex.PW19/A.
133.MLC No. B1813/03 of PW Anju also opined that injury on the hand of PW Anju was self inflicted one.
134.From perusal of complaint no where it could be found that certain models of mobile phones had been robbed from the shop of complainant whereas seizure memo mark PW18/F shows recovery of mobile make Nokia 2100 from accused Imran, seizure memo mark X8 shows recovery of mobile phone make Sony SC No.97/2012 State v. Mustakeen and others 45/48 Ericsson T100 from accused Mustakeen, seizure memo mark X9 shows recovery of mobile phone Nokia Model 3310 from accused Shamsher and seizure memo mark PW18/F shows recovery of mobile phone Nokia Model 3530 from accused Mohd. Yusuf in case FIR No.265/2003 police station Gokalpuri. At least seizure memo and fact of complaint must have been corroborated with each other to prove the case of prosecution. Hence, recovery of aforesaid mobile phones create doubt upon the investigation of prosecution.
135.Since testimonies of complainant and other official witnesses are not corroborative and no weapon has been recovered in the present case. Hence, this court comes to the conclusion that prosecution has failed to lead any evidence to show that accused had used the "deadly weapon" while committing robbery, thus, in view of this court, ingredients of offence under Section 397 IPC are not attracted in this case. In the absence of necessary ingredients that have not been established by the prosecution, conviction of accused under Section 397 IPC cannot be awarded.
136.In reference to section 392 IPC, since ingredients of that section has also not been complied with, hence, it will not be safe to convict the accused persons merely on conjectures and surmises.
137.Further, PW3 deposed in his deposition that accused persons had pointed out country made pistol upon him while committing the crime but no recovery of SC No.97/2012 State v. Mustakeen and others 46/48 weapon could be effected to this effect. Hence, it cannot be presumed that facts has been corroborated by circumstantial or ocular evidence.
138.Since complainant submits on different footings, PW Anju also states that no incident had happened during her employment with PW3 complainant, recovery aspect also not corroborated and there is no independent witnesses either to recovery or arrest of the accused persons. In these circumstances coupled with the fact of the case, this court comes to the conclusion that prosecution has been failed to prove its charges against accused persons namely Mustakeen, Imran, Md. Yusuf, Shamsher and Arif beyond reasonable doubt.
139.Since no independent witness could be examined by the prosecution on the fact of recovery of mobile phones, dummy phones and recharge coupons etc. from accused persons. Hence, it cannot be presumed that accused persons were found in possession of stolen property. Mere identification of articles by witness in the court is not sufficient unless same has been supported by any independent witness. In absence of independent witness planting of recovery upon the accused persons cannot be ruled out. Hence, benefit of doubt goes to accused persons from charges u/s 411 IPC.
140.Hence, in the absence of sufficient evidence against the accused persons this court acquit accused persons namely Mustakeen, Imran, Md. Yusuf, Shamsher and Arif from the charges u/s 392/397/411/34 IPC by giving them benefit of doubt. SC No.97/2012
State v. Mustakeen and others 47/48
141.In terms of Section 437 (A) Cr. P.C. accused persons namely Mustakeen, Imran, Md. Yusuf, Shamsher and Arif are directed to execute bail bond in sum of Rs. 20,000/ each with one surety in the like amount for the period of six months. Order accordingly.
142.File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON THIS 09.05.2013 (RAMESH KUMARII) ASJ01/ NORTH - EAST KARKARDOOMA COURTS, DELHI SC No.97/2012 State v. Mustakeen and others 48/48