Delhi District Court
State vs . Mohd.Afroj Etc. Fir 458/14 ... on 17 October, 2017
State Vs. Mohd.Afroj etc. FIR 458/14 (56724/2016)
IN THE COURT OF SHRI MANISH YADUVANSHI
ADDITIONAL SESSIONS JUDGE 05: WEST : DELHI.
IN THE MATTER OF
Case No. 56724/16
FIR No. 458/14
PS Uttam Nagar
U/s 394/392/397/34 IPC
STATE
VERSUS
MOHD.AFROJ
S/O SH.SYED
R/O R5/24, GALI NO.6,
MOHAN GARDEN,
UTTAM NAGAR,
DELHI.
Date of Institution : 24.09.2014
Date of Reserving Judgment : 25.09.2017
Date of Judgment : 17.10.2017
Result: Acquitted Page 1 of 29
State Vs. Mohd.Afroj etc. FIR 458/14 (56724/2016)
JUDGMENT
1.The present accused namely Mohd.Afroj has been facing trial for the
offence punishable U/s 392/394/34 IPC.
FACTS :
2.In brief, the prosecution's case is to the effect that several assailants entered the house of the complainant/PW3 forcibly on 07.05.2014 which is situated at Plot No. 108, Near Sai Vatika, Vipin Garden, Delhi, having common intention amongst them to commit robbery. One of the accused person was having knife. During the course of such act, they committed robbery of gold ear rings of the complainant/PW3 and also gave her knife blows due to which she was hospitalised.
3.During the investigation, a secret information was received pursuant to which one of the accused namely Mohd.Afroj was apprehended from the Police Picket on 24.05.2014 riding Motorcycle bearing no. DL10S2249 at 09:00 PM. He was interrogated and disclosed about the commission of this offence and also about the coaccused persons.
Result: Acquitted Page 2 of 29State Vs. Mohd.Afroj etc. FIR 458/14 (56724/2016)
4.Subsequently, accused Kunal @ Sanjay was arrested in this case on 29.05.2014 and after completion of investigation, the Chargesheet was filed.
5.On the basis of record, a Charge for the commission of offence Punishable U/s 392/394/34 IPC was framed jointly against this accused and his coaccused Mohd.Afroj. Additional Charge for the commission of Offence Punishable U/s 397 IPC was also framed against accused Kunal @ Sanjay (already acquitted) on 25.11.2014.
6.The Prosecution in support of its case, has examined as many as 13 witnesses i.e. PW1 HC Suresh, PW2 HC Vijay Kumar, PW3 Smt.Kiran Verma, PW4 HC Sanjeev Kumar, PW5 ASI Ajeet Singh, PW6 Ms.Preeti Aggarwal, PW7 Dr.Ashish Kumar Khetan, PW8 Dr.G.Adhikari, PW9 HC Manoj Kumar, PW10 Dr.Gaurav Bansal, PW11 Ct.Mohit, PW12 Sh.Ranbir Solanki and PW13 Retired SI Brahm Prakash.
7. Before this Court sets out to summarise the main prosecution Result: Acquitted Page 3 of 29 State Vs. Mohd.Afroj etc. FIR 458/14 (56724/2016) evidence, it is imperative to note that on the DD no.26A dt. 07.05.2014 Ex.PW13/A, it was noted that on the spot, the police party met children Krishna, Deeksha and Gopesh who disclosed that three men had barged into their house; one of them had a knife who hit their mother. The said assailants also took away the jewellery of their mother. The Police Party, had on the basis of the above and finding the Victim "Unfit for statement" in the DDU hospital, prepared the rukka upon which this FIR was registered vide rukka Ex.PW1/B at DD no.33A dt. 07.05.2014 itself.
8.Subsequently, when the Victim was fit for statement, the police recorded her statement U/s 161 Cr.P.C. Ex.PW3/A wherein she stated to be watching T.V. on 07.05.2014 and her children were playing outside. At about 04:00 PM, three boys aged between 18 to 20 years came inside of her house with her three children. One of the boy who was tall took out a Knife and gave a stab injury. The other assailant who was empty handed snatched her ear rings. She prompted her children to shout for help upon which her younger Son ran down stairs upon which one of the assailant started following him. The third boy picked up Victim's purse containing around Result: Acquitted Page 4 of 29 State Vs. Mohd.Afroj etc. FIR 458/14 (56724/2016) Rs.20,000/. When she went towards the door of her house, she was stopped again. One of the assailant had a Pistol. When she had come towards her house door, she had seen accused Afroj standing near it and she knew him as he worked as their driver since about 1½ years ago. This accused was arrested upon a secret information from a Police Picket where he came riding a Motorcycle no. DL16S2249 make Yamah R15. He was apprehended and on interrogation, he disclosed about his involvement in the present Crime and also disclosed about the involvement of coaccused namely Kunal @ Sanjay; Pankaj and Sanjeet (not arrested). On this lead, remaining investigations were made and coaccused Kunal @ Sanjay was also arrested. The police seized the CCTV Footage of the relevant period from one Ranbir Solanki (PW12) R/o Plot No. 331,Vipin Garden, Delhi.
9.To prove the above facts, PW1 HC Suresh is examined to prove DD no.26A which he proved as recorded by him as Ex.PW1/D. He also proves that on the rukka of this case, he got FIR Ex.PW1/A registered U/s 394/34 IPC and upon which he also proved his endorsement as Ex.PW1/B. In support of the FIR, he proves the Result: Acquitted Page 5 of 29 State Vs. Mohd.Afroj etc. FIR 458/14 (56724/2016) Certificate U/s 65 of the Indian Evidence Act as Ex.PW1/C.
10.HC Vijay Kumar/ PW2 proves that he had received Motorcycle no. DL10S2249 and Helmet Ex.P.1 & Ex.P.2 respectively on 24.05.2014 in the Malkhana of the PS through SI Brahm Prakash regarding which he made due entry in the roznamcha register, copy of which is proved as Ex.PW2/A (OS&R).
11.The Victim Smt.Kiran Verma/PW3 supports the incident dt.
07.05.2014. She states that three intruders entered her house and came to her room at 04:00 PM alongwith her two children and two other children of her neighbour. These accused put a Knife on her neck. One boy of long height had put a Gun on her Son. The accused who put Knife upon her had snatched her gold Chain, gold Ear Jhumkis and one gold Ring. She deposes to have sent her other two children to the roof to call for help. In the meantime, the third assailant also started following them and she asked her eldest Son to run down for help. The assailant with Gun chased her elder Son. The assailant with Knife inflicted injuries on her left side Stomach, right Palm and right Arm in the Staircase when she tried to stop him from Result: Acquitted Page 6 of 29 State Vs. Mohd.Afroj etc. FIR 458/14 (56724/2016) following her Son. She deposed that the assailants snatched Rs.20,000/ from her. When they started to run away, she chased them and saw that her driver was present outside. These assailants managed to escape on two Motorcycles. Her neighbours took her to DDU hospital. She had become unconscious and regained it only after 23 days. She also deposes that her gold Chain which was snatched was found lateron from her own Blouse in her house. She also deposed that police met her in the hospital and visited at her house twice after discharge but they never came with any accused in their custody. She then deposed that she could not identify the Robbers even by their faces.
It was at this stage that the request of the Prosecution to crossexamine this witness on identity of the accused persons was allowed by the Court. She thereafter, was crossexamined in detail by the Ld.Prosecutor and then also by the defence counsels.
12.PW4 HC Sanjeev Kumar is the Mobile Crime Team Photographer who clicked photographs of blood spots found inside the house and outside of the house in the gali. These five photographs are Ex.PW 4/1 to Ex.PW4/5 and the Negatives thereof are Ex.PW4/6 to Result: Acquitted Page 7 of 29 State Vs. Mohd.Afroj etc. FIR 458/14 (56724/2016) Ex.PW4/10 respectively.
13. PW5 ASI Ajeet Singh is also a member of Crime Team who inspected the spot and prepared Crime Scene Report Ex.PW5/A.
14. TIP Proceedings of accused persons were proved through PW6 Ms.Preeti Aggarwal, the then M.M., Tis Hazari Court, Delhi. The said Proceedings dt. 02.06.2014 with respect to this accused have been proved as Ex.PW6/D, according to which this accused refused to take part in the TIP proceedings on the ground that the complainant already knew him and that the police had already taken his photographs.
15.PW3 Smt.Kiran Verma was medically examined against MLC No. 4744/14 on 08.05.2014 and on the said MLC, the examining Doctor namely Dr.Ashish Kumar Khetan/PW7 had made an endorsement that she was "Fit for Statement" which is proved by him as Ex.PW7/A.
16.The MLC itself was prepared by Dr.Manjeet Kumar under the Supervision of Dr.G.Adhikari/PW8 who proved it after identifying handwriting of Dr.Manjeet Kumar as Ex.PW8/A. On Victim's local Examination, CIW 3 cm. X 1 cm was Result: Acquitted Page 8 of 29 State Vs. Mohd.Afroj etc. FIR 458/14 (56724/2016) found on middle aspect of right lower 1/3rd of Arm, CIW 3 cm. X 1 cm was found on mid axillary line left costal region and CAW 2 cm x 0.5 cm was found between right thumb and right Index finger of the Victim who was given first Aid and referred to Surgery, Plastic and Orthopedic Doctors on duty. This doctor did not give Opinion on the nature of injuries.
17. HC Manoj Kumar/PW9 was on duty on 24.04.2014 with Ct.Pradeep, Ct.Tasvir and SI Brahm Prakash at Gandhi Chowk, Mohan Garden and in the evening an informer told them that a person involved in the incident of robbery at Vipin Garden, will come at Gandhi Chowk on Motorcycle. A Picket was formed and at 09:00 PM, this accused arrived there on a Yamah Motorcycle R15, red & white Colour bearing Registration No. DL10S2249. At the instance of the Informer, he was stopped and interrogated by SI Brahm Prakash during which, he eventually admitted his guilt and disclosed name of his associates. He was arrested vide Memo Ex.PW9/A and his Personal Search conducted vide Memo Ex.PW9/B. His disclosure statement Ex.PW9/C was recorded which was signed by Result: Acquitted Page 9 of 29 State Vs. Mohd.Afroj etc. FIR 458/14 (56724/2016) this witness. The Motorcycle Ex.P.1 and Helmet Ex.P.2 were seized vide memo Ex.PW9/D signed by this witness. He pointed out to the place of occurrence vide Memo Ex.PW1/E also signed by this witness.
During investigation on 05.06.2014, he, SI Brahm Prakash and Ct.Pradeep took out the accused from Lock Up and interrogated him. He led them to the spot of occurrence and to the house of his associates Pankaj and Sanjeet but they were not found.
18.Dr.Raj Shekhar had given Opinion on the MLC regarding Nature of Injuries as "Dangerous to Life" as Penetrating Injury with haemoperitoneum with colonic perforation was noted. This endorsement by the doctor at portion A & B on the MLC Ex.PW8/A was proved through Dr.Gaurav Bansal/PW10 as he had seen Dr.Raj Shekhar writing and signing in official capacity. He also clarified that no doctor in the name of Dr.Sanjay is working in DDU hospital and the mention of his name in the list of witnesses is under some misconception.
19.Ct.Mohit/PW11 was on emergency duty with SI Brahm Prakash on 07.05.2014. A call was received at about 04:30 PM in the PS Result: Acquitted Page 10 of 29 State Vs. Mohd.Afroj etc. FIR 458/14 (56724/2016) which was assigned to them. They reached the spot of occurrence and found that an injured lady has been taken to hospital. Blood was found at the spot. The IO left him on the spot to secure it and proceeded to the hospital and after return, he gave a rukka to PW11 upon which he got the case registered and handedover copy of FIR to IO on the spot.
20.I have stated that the police had seized CCTV Footage from one Ranbir Solanki. He is PW12 and he owns a Plot bearing no.331, Vipin Garden, Delhi where he has installed CCTV Cameras covering all surroundings. He proved that on 09.05.2014 officials of PS Uttam Nagar collected CCTV of 07.05.2014 and 08.05.2014 by getting its copy in a Pen Drive. The Pen Drive is not in judicial record and according to the witness, the footage gets erased automatically after 45 days.
21.PW13 SI Brahm Prakash is the IO. He has deposed in accordance of Prosecution's case. He, in his testimony has affirmed the testimonies of his fellow Police Men recorded in this case. Additionally, he proves that he examined the owns of H.No.331, Vipin Garden, Uttam Nagar U/s 161 Cr.P.C. (PW12) and also Result: Acquitted Page 11 of 29 State Vs. Mohd.Afroj etc. FIR 458/14 (56724/2016) prepared Site Plan Ex.PW13/B. He supports other witnesses regarding receipt of secret information. What he additionally states besides PW9 is that the accused confessed to his guilt when he was confronted with CCTV Footage Photographs. He affirms the facts regarding arrest, personal search, disclosure statement, Pointing out Memos and Seizure of Motorcycle and Helmet. His testimony regarding the arrest of coaccused is irrelevant for the decision regarding complicity of this accused and the coaccused Kunal @ Sanjay who has been already acquitted.
He has deposed regarding the steps taken by him for TIP proceedings of accused Afroj. He deposed that after receipt of result of nature of injuries, Section 397 IPC was added and Chargesheet was filed. Other accused persons could not be traced by him. The Motorcycle was physically produced with Helmet which are already exhibited as Ex.P.1 & Ex.P.2 respectively. He clarifies in his Chief examination that he never seized the CCTV Footage but only obtained stills from it.
22.Ct.Pradeep was dropped by the Prosecution on 16.11.2015 on the ground that other witnesses have been examined with respect to the Result: Acquitted Page 12 of 29 State Vs. Mohd.Afroj etc. FIR 458/14 (56724/2016) same facts.
23.Ct.Tasvir was also dropped by the prosecution as his testimony was repetitive of facts already deposed by PW9. SI Kuldeep was also dropped as Prosecution Witness by the Prosecution on 03.01.2017 as his name was inadvertently cited by the IO.
24.Ms.Aditi Garg, the then M.M. was dropped by the Prosecution on 18.04.2017 as facts to be proved by her had been already proved through PW6.
25.As per the statement of Mohd.Afroj U/s 313 Cr.P.C., the Prosecution's case is incorrect and false. As per him, the witnesses of prosecution are interested witnesses. He claims that he was never present on the spot. He has denied knowledge regarding all investigation. Regarding his arrest, he claims that he was arrested from his house and his Motorcycle was also picked up from his house only thereafter which he was falsely implicated in this case. He has not denied the evidence with respect to the TIP proceedings stating that the complainant was known to him from prior to the incident. He was asked if he wishes to lead evidence to support his defence but did not opt for the same.
Result: Acquitted Page 13 of 29State Vs. Mohd.Afroj etc. FIR 458/14 (56724/2016)
26.I have heard Sh.Devender Hora, ld. Counsel for the accused, Sh.B.B.Bhasin, ld.Addl.P.P.for the State and perused the record carefully.
27. According to the Ld.Prosecutor Mr.Bhasin, the PW3 Mrs.Kiran Verma who was initially reluctant to identify Mohd.Afroj is the person who was employed as their household driver and was found standing right outside her house and who eventually ran away alongwith the main assailants on their motorcycle, had ultimately identified him while under crossexamination by the Prosecutor. It is submitted that the above factor coupled with the factor that Afroj refused to take part in Judicial TIP without any sound justification is a strong pointer to his guilt. It is urged that he had the motive and he is the person who had facilitated the congregation of the remaining coaccused persons at the house of the Victim in order to commit robbery and other offences they are charged with as he was familiar with the household being their driver. It is urged that he did not play active role in the commission of the main offence as the Victim could have identified him but he was part of the entire game plan as all the accused persons shared common intention amongst each other to rob Result: Acquitted Page 14 of 29 State Vs. Mohd.Afroj etc. FIR 458/14 (56724/2016) the Victim. He urges that there is no reason to doubt the version of the arresting Police officials and that in this manner the prosecution has succeeded to prove its case beyond all reasonable doubts. He is specifically argued that there is a suggestion given by the defence to PW3 which establishes that Afroj was present outside Victim's house. The said suggestion is recorded in crossexamination dt. 04.09.2015 as, "It is correct that accused Afroj did not enter my house".
28. It is therefore submitted that even the Ld.Counsel for the accused stands in support of the prosecution in putting such a negative suggestion to the Star witness of the prosecution to the effect that accused Afroj did not enter the house and which exactly is the prosecution's case to the effect that Afroj remained outside the house to keep vigil alongwith his other associates so that the others may commit robbery.
29.Conversely, the Ld.Counsel for the defence has submitted straightway that PW3's testimony cannot be relied by this Court to any extent. It is pointed out that the witness has improved upon her police statement Ex.PW3/DX dt. 08.05.2014 and these Result: Acquitted Page 15 of 29 State Vs. Mohd.Afroj etc. FIR 458/14 (56724/2016) improvements are material. The Court was taken through the lengthy crossexamination wherein the witness has been repeatedly confronted with her statements that she made in her court testimony but not before the IO.
30.It is urged that before crossexamination, the witness stated on Oath that she could not identify the accused persons even by their faces. Whereas, it is only in her crossexamination, that she half heartedly identified Afroj not as a robber but as her previous driver who was standing outside her house.
31.It is pointed out that the defence has suggested PW3 Smt.Kiran Verma that Afroj was never her driver or her husband's driver. It is pointed out that PW3 did not produce any record of employment of Afroj as the household driver.
32.It is urged that as per defence the accused was never on the spot and that in this context the PW3 is deposing falsely at the instance of the Investigating Officer. It is submitted that there is no other corroborating evidence as the photographs, particularly Mark PW 3/1 to Mark PW3/10 are never proved in accordance of Law.
33.In this context, it is urged that the photographs are claimed to have Result: Acquitted Page 16 of 29 State Vs. Mohd.Afroj etc. FIR 458/14 (56724/2016) been obtained from CCTV Camera installed in the premises of PW 12 Ranbir Solanki but then, the IO himself states in his Chief Examination that he never seized the CCTV Footage but only obtained stills from it. There is no Certificate U/s 65B of the Indian Evidence Act to prove these photographs.
34.It is further urged that if PW3 is to be believed then, the CCTV Cameras were installed in her premises. Even in this respect she is confused. At one place, she states that the Cameras are installed in front of her house while at another place, she states that the Cameras are installed at the back of her house. Nevertheless, she claims that the IO obtained CCTV Footage from her which is never the case of the prosecution as the prosecution obtained the same from PW12 and remained unable to prove the same in the Court as per Law.
35.Regarding arrest of the accused, it is submitted that it is highly doubtful. The manner of receipt of Secret information is said to be doubtful. In any case, it is urged that the place of alleged arrest is a public way and thus, a public place and admittedly, lot of public persons were available but there is no cogent reason as to why none would be available to be joined as an independent witness despite the Result: Acquitted Page 17 of 29 State Vs. Mohd.Afroj etc. FIR 458/14 (56724/2016) fact that as per the IO and also PW9, the accused did not easily confess to his guilt (on the spot) at the first instance. The IO even goes to say that the accused confessed only when confronted with photographs from CCTV Camera. This would have taken time and still there is absence of public witness. The case of the defence is that the accused was lifted from his house and it is urged that its probability is greater than the version of PW9 and PW13 creating a doubt and the benefit of it is demanded for the accused.
36.To sum up it is urged that no recovery has been effected and the accused has been arrested merely on his disclosure statement.
37.The points for determination in this case in accordance with Section 354 (1) (b) shall be :
(1) Whether the testimony of PW3 Smt.Kiran Verma is sufficient for identification of accused as the person who was one of the assailant in committing offences Punishable U/s 392/394 r/w Section 34 IPC?
(2) If not, whether the other evidence produced would still connect the accused with the offences he is facing trial of?Result: Acquitted Page 18 of 29
State Vs. Mohd.Afroj etc. FIR 458/14 (56724/2016)
38. (1) Whether the testimony of PW3 Smt.Kiran Verma is sufficient for identification of accused as the person who was one of the assailant in committing offences Punishable U/s 392/394 r/w Section 34 IPC?
39.The Court after minute reading of all evidences before it finds that the concerned doctor who declared PW3 "Fit for Statement"
mentions in his crossexamination that he did not mention either the date or the time when he declared her so "fit for statement". The said doctor PW7 still tries to prove his Noting in Portion encircled as Ex. PW7/A on the IO's application to that effect. The Court can take Judicial Note of the fact that the IO's application is dt. 08.05.2014 and as per the PW13/IO, he resumed investigation after 07.05.2014 on 08.05.2014 when he found Patient declared "Fit for statement" and recorded the same.
40.The omission of the doctor concerned to write the date assumes importance as PW3 is otherwise claiming repeatedly in her lengthly crossexamination as also in the Chief examination that she had lost consciousness on the spot and that she remained unconscious for Result: Acquitted Page 19 of 29 State Vs. Mohd.Afroj etc. FIR 458/14 (56724/2016) about 23 days. She states on solemn affirmation that she regained her consciousness after about 4 days and on the fourth day her statement was recorded by the police. This single instance as recorded in her crossexamination dt. 05.03.2015 could have been ignored. Incident took place on 07.05.2014 and she was appearing in the Court after quite some time on 05.03.2015 and therefore, may have had memory lapses. Further, tendency of Victims to boast and exaggerate is not unknown to Criminal Jurisprudence. Same do not affect such testimony if the basic frame work remains the same. However, once they deviate and introduce elements of imagination not in the case of prosecution then, such testimonies are to be scrutinized with greater caution. It becomes more and more so when the Court finds that such a witness is the only Star witness of the prosecution.
41.What the Court finds is that this witness, after sometime of 05.03.2015 i.e. on 04.09.2015 agrees to the defence's suggestion to the effect that she remained unconscious for 2/3 days. Thus, it is the Victim's version which makes this Court believe that either her statement was recorded on 08.05.2014 i.e.the next day of incident or that it was recorded after 2 or 3 or 4 days as claimed by her.
Result: Acquitted Page 20 of 29State Vs. Mohd.Afroj etc. FIR 458/14 (56724/2016)
42.Therefore, non mentioning of the date on Ex.PW7/A by the concerned doctor becomes of importance in peculiar light of this line of crossexamination adopted by defence while crossexamining the doctor/PW7.
43.The next important aspect in the same context is the fact that the Victim was never friendly to the prosecution. She disavoad its case totally as against already acquitted accused Kunal @ Sanjay. She did the same to the prosecution's case as against this accused. All she has to say in this context is that she saw her driver present outside. This sole factor has to be first established by the prosecution by cogently proving that Afroj was actually employed as a driver in this household till 1½ years prior to the date of incident. No such proof of employment is upon record. The Police never examined Victim's husband in this context. The Victim's husband is not a prosecution witness. Apart from PW3, there is none to say that Afroj was employed with them.
44.Even if the Court deviates from the Principle that the prosecution has to prove its case against the accused beyond all reasonable doubts (which it does not) then also mere presence of the Victim's driver Result: Acquitted Page 21 of 29 State Vs. Mohd.Afroj etc. FIR 458/14 (56724/2016) outside her house at the time of incident will never proved his complicity in the offences complained of in the light of facts and evidence in this case.
45.Had the Prosecution proved beyond all reasonable doubts that the accused was employed as a driver in the Victim's household then, this Court could have proceeded ahead to examine the veracity of the testimony of PW3 that the accused/her driver also ran away alongwith her assailants and therefore equally guilty with them.
46.But the prosecution has failed in the first part itself. Thus, even though the Victim says that PW3 ran away with the other accused persons, the Court will still to have connect the two dots i.e. (I) that the accused who was standing outside was former driver of Victim and (II) since he was involved in the incident thus, he ran away on the same Motorcycles on which the main assailants fled from the spot.
47.I am afraid to say that these two dots are not connect.
48. The next evidence still to show that the accused was at the gate of the Victim and ran away with remaining assailants on Motorcycle is the Electronic evidence i.e. the photographs on record. I agree with Result: Acquitted Page 22 of 29 State Vs. Mohd.Afroj etc. FIR 458/14 (56724/2016) the defence that photographs Mark PW3/1 to Mark PW3/10 are not proved in accordance of law. The other photographs Mark PW4 /1 to Mark PW4/5 are of the spot which do not depict any of the accused and therefore useless for this purpose. The very next Electronic evidence could have been the actual DVR/CCTV Footage which was never seized or preserved by the IO as is evident in own testimony of PW13/IO and supporting testimony of PW12/owner of the premises.
49.Therefore, this Court has no conclusive, corroborative & clinching evidence to conclude that driver or not, Mohd.Afroj ran away with remaining accused persons and therefore, involved in the offences.
50.The next point is a fact that the prosecution could have capitalised on but failed to do. In his statement U/s 313 Cr.P.C., the accused denies the specific question that he was driver of PW3 and at the same time in response to Question no.23, where he does not deny the evidence on Judicial TIP, he makes a statement that, "Complainant Smt.Kiran was known to me prior to this incident".
51.Even while refusing Judicial TIP, the accused Afroj had stated that Result: Acquitted Page 23 of 29 State Vs. Mohd.Afroj etc. FIR 458/14 (56724/2016) the complainant already knew him. If the accused stated so, it was not such a circumstance which was exclusively to his knowledge and therefore, he was required to explain the same and the inference of non explaining of which could have been held against him. It cannot be said to be an exclusive knowledge as the same would be also in the knowledge of PW3.
52.The common link that occurs is that PW3 claims to be knowing Afroj but as her driver while Afroj also claims that PW3 knows him. The Investigating Agency must have and should have taken advantage of this fact and on taking cue from the same, it ought to have collected evidence to show and prove conclusively that the accused was employed as a driver in the household and therefore, had a motive to commit robbery there in association with the other accused persons as he knew about the household.
53.Since the Investigating Agency failed to do it and in the Court PW 3 remained semi hostile to the Prosecution, the Prosecution here was not equipped to prove this fact. Thus, this important element loses its sheen for the reasons above.
54.Regarding the identification of this accused, the plea of the Result: Acquitted Page 24 of 29 State Vs. Mohd.Afroj etc. FIR 458/14 (56724/2016) Prosecutor regarding the suggestion of defence as recorded above in Para 27, I am to say that the same does not inspire confidence as a mere straight suggestion that Afroj did not enter the house cannot be given an imputation that he was present outside it also. The suspicion, howsoever grave cannot take place of actual proof.
55.Thus, I am to hold that the testimony of PW3 which is riddled with confrontations and the improvements which are overwhelming does not inspire confidence. Such shaky identification cannot be believed. The accused claimed that police had taken his photographs and thus he refused to take part in Judicial TIP and even PW3 admitted in her crossexamination that the police had shown Afroj to her in the Police Station and it was only thereafter that she went to Tihar Jail for TIP proceedings. The last element of this evidence is the Chance Identification of Afroj by police at residence of PW3 when he had accompanied them to point out the place of crime vide Pointing Out Memo Ex.PW13/G is also useless as PW3 has never agreed in her Court testimony that the police brought Afroj to her house where she identified him.
56. I shall now come to the second point i.e. If the testimony of PW Result: Acquitted Page 25 of 29 State Vs. Mohd.Afroj etc. FIR 458/14 (56724/2016) 3 Smt.Kiran Verma is not sufficient for identification of accused then, whether the other evidence produced would still connect the accused with the offences he is facing trial of?
57.The remaining evidence in this case is only with respect to the investigation stage. If the prosecution fails to establish the accused as the person who was even present on the spot then the remaining evidence loses its all implicatory forces. Nevertheless, it is quite strange to note that PW13 did not state in the Court as to what investigation he made between 09.05.2014 and 24.05.2014 i.e. the date of arrest of accused Afroj. He, on 24.05.2014 was with HC Manoj (PW9), Ct.Tasvir and Ct.Pradeep (not examined). IO states that he had left with these police officials in the search of accused persons and while making it they had reached Gandhi Chowk, Sainik Public School, Uttam Nagar. Likewise, PW9 also states that he was with the above police officials but then there is mix up of recording of dates which is recorded as "24.04.2014" in his Chief Examination and "24.05.2014" in his Crossexamination. However, the document cannot be incorrect and the Arrest Memo and the Personal Search Memo show that the correct date is 24.05.2014. It was suddenly that Result: Acquitted Page 26 of 29 State Vs. Mohd.Afroj etc. FIR 458/14 (56724/2016) they received a secret information at the above spot. They formed a Picket. It is difficult to digest that as many as four police officials were together in searching the accused after 19 days of incident and that too without having received any prior information. That is why there is force in the arguments of defence that the manner of receiving secret information is doubtful. It therefore, makes the arrest also doubtful. The Court could have ignored these facts but then in view of such doubts, further corroboration to testimonies of PW9 and PW13 is required. Both of them agreed that many public witnesses were available. There is no cogent reason provided as to why if no one could be joined as a public witness at the time of interrogation then why, after it was over, none was still considered to be joined as a witness while arresting the accused and conducting his personal search. Thus, absence of public witnesses despite their availability makes the arrest as doubtful.
58.Same is the analogy with respect to the memo of Seizure of Motorcycle and Helmet Ex.PW9/D. So far as Memo of Pointing Out of Place of Occurrence Ex.PW9/E is concerned, PW3 herself has created a doubt when she says that the police never came to her Result: Acquitted Page 27 of 29 State Vs. Mohd.Afroj etc. FIR 458/14 (56724/2016) place with Afroj. Moreover, even this memo is not even signed by any public witness.
59.Rest of the evidence on record is medical evidence which even if appreciated will not assist this Court in reaching to any further conclusion. For the above reasons, I am to hold that the remaining evidence also does not connect the accused Afroj as the person who committed offences Punishable U/s 392/394 IPC r/w Section 34 IPC in furtherance of his common intention to do so with his associates. CONCLUSION :
60.Thus, the prosecution has failed to prove its case against the accused Afroj beyond all reasonable doubts. In view of the lacunae left in the evidence collection and in view of the contradictions found in the testimony of PW3 Smt.Kiran Verma, benefit of doubt has to be given to Mohd.Afroj. He is accordingly Acquitted of the Charges Punishable U/s 392/394/34 IPC.
He is directed to comply with the Provisions of Section 437A Cr.P.C. by furnishing PB/SB in sum of Rs.20,000/ (Rupees twenty thousand only) with one surety in the like amount.
Result: Acquitted Page 28 of 29State Vs. Mohd.Afroj etc. FIR 458/14 (56724/2016) Further it is ordered that the case property of this case, if any, be disposed of/destroyed after expiry of period of filing appeal, if any.
File be consigned to Record Room.
Announced in open Court (Manish Yaduvanshi)
on 17.10.2017 ASJ05(W)/THC
Delhi/17.10.2017(P)
Result: Acquitted Page 29 of 29