Delhi District Court
State vs . 1. Mohd. Azad Alam on 28 February, 2013
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 81/2011
Unique Case ID: 02404R0138272011
State Vs. 1. Mohd. Azad Alam
S/o Mohd. Nazir,
R/o WZ323 Vil. Shakurpur, Delhi.
(Convicted)
2. Shahzad
S/o Mohd. NasiurRehman
R/o WZ323 Vil. Shakurpur, Delhi.
(Convicted)
3. Sarfaraz @ Sonu
S/o Abdul Ahad,
R/o WZ323 Vil. Shakurpur, Delhi.
(Convicted)
4. Naeem @ Naimuddin
S/o Shamimuddin,
R/o H221, JJ Colony,
Shakurpur, Delhi.
(Convicted)
5. Mohd. Arif
S/o Jalaludin Siddiki,
R/o M7, Sample Quarters,
JJ Colony, Shakurpur, Delhi.
(Convicted)
State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 1 of 92
FIR No. : 36/2011
Police Station : Saraswati Vihar
Under Section : 397/395/34 Indian Penal Code
Date of committal to Sessions Court : 04.06.2011
Date on which orders were reserved : 28.01.2013
Date on which judgment pronounced : 16.02.2013
JUDGMENT
Brief Facts:
(1) As per the allegations, on 4.2.2011 the accused Mohd.
Azad Alam, Shahzad, Naeem @ Naimuddin, Mohd. Arif and Sarfaraz @ Sonu in furtherance of common intention committed dacoity at WZ62, Ground Floor, Gali No. 2, Sri Nagar, Delhi, at about 9:45 PM. It is alleged that Naeem was having knife and apprehended Amar Nath Gupta while Arif who was also having knife surrounded the servants working in the shop and the accused Sarfaraz who was having a katta also entered the shop whereas Mohd. Azad Alam and Shazad were keeping a watch from outside the shop and thereafter Sarfaraz robbed the cash amount of Rs. 3035 thousand from the cash box on the point of katta and ran away from the spot.
Case of Prosecution in brief:
(2) The case of the prosecution in brief is that on 04.02.2011 on receipt of DD No.76B, SI Umesh Rana along with Ct. Manjeet State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 2 of 92 reached at WZ 621, Gali No.2, Sri Nagar where the complainant Amarnath Gupta met him who produced one buttondar knife and informed that a robbery had been committed at his shop and Rs.
3035 thousand were robbed and robbers left the knife at the spot. SI Umesh Rana prepared the sketch of knife, sealed and seized the same. SI Umesh Rana recorded the statement of Amarnath Gupta, prepared the rukka and got the FIR registered through Ct. Manjeet and Crime Team Official were also called at the spot who inspected the site and took photographs.
(3) The complainant Amarnath Gupta showed CCTV footages of various cameras installed in the shop to SI Umesh Rana of the time of the incident on which SI Umesh Rana directed Amarnath Gupta to preserve the CCTV footage about the commission of offence and directed him to prepare the CD of CCTV footage and handed over to him. Amarnath Gupta also produced one shawl used by the robbers which was seized by the SI Umesh Rana. The complainant Amarnath Gupta informed the IO / SI Umesh Rana that on 04.02.2011 at about 9.45 PM he was sitting on the counter of his shop with his servants Shyam Bahadur and Vijay Bahadur when one person entered his shop who was having a knife in his hand and had his face covered with a handkerchief who put a knife on his back and asked him to handover whatever he has. At the same time, another person entered in the shop who was having a shawl around his body State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 3 of 92 and he attacked Vijay Bahadur and while first boy was keeping the knife on his back on which his servant Shyam Bahadur had caught hold that person and in this process Shyam Bahadur, that boy and he (complainant) fell on the ground when at the same time third boy entered the shop who was having a pistol in his left hand and took out the cash from the Galla / cash box and went towards the outside and in this process his servant Vijay Bahadur had lifted a chair and threw the same on the back of those persons as a result of which some money also fell on ground but those boys finally succeeded in running away from the spot. Thereafter a call was made at 100 number.
(4) On the basis of the above statement of Amar Nath Gupta, the present case was registered and during the investigations, all the accused were arrested and after completing the investigations, the charge sheet was filed in the court.
CHARGE:
(5) Charge under Section 395/397/34 Indian Penal Code were settled against the accused Mohd. Azad Alam, Shahzad, Naeem @ Naimuddin, Mohd. Arif and Sarfaraz @ Sonu. Charge under Section 25 Arms Act was also settled against the accused Sarfaraz @ Sonu.
All the accused pleaded not guilty and claimed trial. State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 4 of 92 EVIDENCE:
(6) In order to discharge the onus upon it the prosecution has examined as many as fifteen witnesses:
Public Witnesses:
(7) PW5 Manoj is the son of the complainant Amar Nath Gupta. According to him he is residing at WZ621, Gali No. 2 Sri Nagar where on the ground floor they are doing the business of whole sale / distribution of tobacco products, where CCTV cameras with a memory of two days are also installed in his shop. He has deposed that on 5.2.2011 he handed over the CD of the record of CCTV installed in the shop pertaining to dated 4.2.2011 on which the present incident had taken place. According to the witness he also handed over another CD of CCTV footage dated 4.2.2011 of two hours prior to the time of incident. He has deposed that the photographs of the video clippings taken from the CCTV footage of which the CDs were prepared which are Ex.PW5/A1 to Ex.PW5/A9 which show the presence of the accused. The CD handed over to the IO on 5.2.2011 is Ex.PX1 and the CD handed over to the IO on 12.2.2011 is Ex.PX2.
(8) This court observed that when the CD Ex.PX1 was played in the court, it showed the presence of three accused who all State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 5 of 92 are muffled but the face of one could be seen after the shawl fell down who was Arif. In CD Ex.PX2 the accused Shahzad and Sarfaraz are identifiable out of whom Shahazad is also visible in Ex.PX1 as standing outside the shop and Sarfaraz had come inside and is identifiable on the basis of the clothes he was wearing which are similar in Ex.PX2.
(9) In his cross examination the witness has deposed that he had prepared the CDs and handed over the same to the police while the photographs of the same were prepared by the police. He has denied that the CCTV footage were incorrect or doctored. According to the witness on the date of incident he was not present at the spot.
He has deposed that he had shown to the police the places where the CCTV cameras were installed and has voluntarily explained that the said cameras are still fitted on the same place.
(10) PW6 Vijay Bahadur is the servant of complainant working at Shop No. WZ621, Gali No.2, Shri Nagar, Rani Bagh for last ten years. According to him the owner of the shop Amar Nath Gupta is involved in the business of wholesale of Tobacco products. The witness has deposed that on 04.02.2011, he Shyam Bahadur and Amar Nath Gupta were present at the shop and at about 9:45 PM three boys came to the shop. According to the witness, initially one boy entered inside the shop, he was carrying a knife. He was followed by another boy who was having a shawl wrapped around State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 6 of 92 himself and the third one followed him with a pistol. The witness has deposed that he first boy put a knife on Amar Nath Gupta, the second boy who was in a shawl showed the knife to him (witness) and Shyam Bahadur and when the third boy with the pistol entered, they (victims) started raising an alarm on which the shawl of the second boy slipped and fell down on which he (witness) could recognize him and he (witness) hit him (assailant) with a chair kept in the shop and on this the said boys fled from the shop. (11) Leading questions were put to the witness by Addl. PP for State wherein the witness has deposed that the police had recorded his statement at the shop itself. He admits that he had told the police that when the shawl of the person whom he had hit with the chair fell some money he was carrying also fell down. He further admits that he had told the police in his statement that the person who was carrying a pistol had removed the money from the cash box. The witness also admits that he had told the police that four boys had come to the spot and out of these boys two boys were carrying knives one of whom had shown the knife to him and the other had shown the knife to Shyam Bahadur whereas the boy having the katta was standing outside and he was the one who came inside later and removed the money from the "gala". The witness has clarified that earlier he had stated that three persons had entered since he had forgotten the sequence as the fourth one was standing outside. The State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 7 of 92 witness has deposed that he had told the police that two of these boys had covered their faces with handkerchief whereas two of the boys have their faces exposed. According to him he had identified one of the accused in the Tihar Jail. The witness has identified his signatures on TIP proceedings of accused Shahzad which is Ex.PX6 at point A. (12) The witness has correctly identified all the accused persons in the court by pointing out towards them. He has identified the accused Naeem who was present in the court in pink shirt. He has identified the accused Aarif who was present in the court in grey check shirt. He has further identified the accused Sarfaraz who was present in the court in white shirt. He has also identified the accused Shahzad who was present in the court in white shirt. The witness has stated that it was the accused Naeem who came first followed by Aarif and Sarfaraz whereas Shahzad stood outside and entered later. He has also identified the accused Naeem and Aarif as the boys who were carrying a knife and states that he is slightly confused as to who was carrying a pistol whether Sarfaraz or Shahzad as the entire incident took place in a quick succession.
(13) In his cross examination by Ld. Defence Counsels, the witness has deposed that his statement was recorded by the police on four occasions however he does not recollect the date and states that all his statements were recorded on different dates but he is unable to tell the time gap between the recording of the different statements. State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 8 of 92 The witness has deposed that three statements were recorded at the shop itself and the fourth statement was recorded in the court when he had come to the court to met the IO because he wanted to go back home and he identified one of the boys / assailants in the court itself. He has deposed that he had not given the description of the various accused regarding their clothes, stature, appearance etc to the police. He is unable to tell the time entire incident lasted and has voluntarily explained that he was confused at that time. He deposed that they closed the shop very late and not at 10 PM. According to him the police did not record the statements of any neighbouring shopkeepers in his presence. He has deposed that at the time of the incident owner of their Shop Amar Nath was sitting near the cash box. According to him the cash box is situated at the counter which is at the starting of the shop and there is no table at the counter but the entrance which can be moved/ shifted for the purpose of entering. He is unable to tell the exact distance between him and Amar Nath when the incident took place. He has deposed that he was approximately at the same distance as between him and the Ld. Defence counsel (court observation : three feet). Witness is unable to tell whether the keys of the cash box were snatched by the accused from Amar Nath and has voluntarily explained that he had not noticed whether the cash box was opened or closed. He is unable to tell whether the cash was lying open or closed and has voluntarily State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 9 of 92 explained that only Amar Nath can tell. Witness is unable to tell whether Amar Nath had received any injuries on account of knife blows and also cannot tell where the knife was kept on him whether on neck or stomach or back and has voluntarily explained that he was very confused and perplexed at that time. He has deposed that there was an "utha patak" (physical altercation) between them and the assailants but he is unable to tell whether in the same Amar Nath had also fallen down or not. Witness is unable to tell the time till when the said "utha patak" continued but states that it was certainly not till 15 minutes and has voluntarily explained that it would hardly have been 810 minutes. According to the witness he did not go to Amar Nath to save him because by that time the other boys had come inside almost simultaneously and were assaulting them. He has deposed that the first boy who entered had partly covered his face with handkerchief, the second boy had covered his face with shawl, the third boy had also had partly covered his face with handkerchief and the fourth boy who came later had also partly covered his face with handkerchief. According to the witness he has not been shown any photographs of the accused.
(14) A question was put to the witness as to how could he identify the accused when their faces were covered and the witness has answered that he could identify the accused because two boys had earlier come on the pretext of making some purchases and when State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 10 of 92 these boys came later they were wearing the same clothes and one of the boys who had covered his face with the shawl, he could identify because during the altercation his shawl had fallen down. (15) The witness is unable to tell the time gap between the entry of the first and the second accused. He has deposed that prior to this incident the two accused had come about half an hour earlier to the present incident which took place at 9:45 PM. He has further deposed that the accused had entered one by one in quick succession and not after a gap but he is unable to tell whether the physical altercation was going on with all the accused and has explained that he can only tell about himself that he was trying to resist the accused. The witness has deposed that he had fallen down during the altercation but he did not sustain any injuries. He is unable to tell how many blows he must have received and has voluntarily explained that in a sudden attack / assault he got confused and it is not possible for him to remember the details. He has denied that there were no chairs in the shop and has voluntarily explained that he had hit one of the accused with the chair. He is unable to tell the number of chairs kept in the shop but has denied the suggestion that there were no chairs. He is unable to tell how the accused had carried the amount they had removed from the cash box and denied that there were three accused and not four and has voluntarily explained that he had initially stated there were three accused but State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 11 of 92 there was also fourth one who was standing outside and who came inside later. According to the witness the shop has two shutters and the side shutter was half closed but he is not sure if the accused were standing outside the side shutter which was half closed and has explained that it is possible that they could have been standing on that side. The witness has denied that he has falsely implicated the fourth person on the asking of the investigating officer and there was no such person who came inside later and it is for this reason that he initially mentioned only about three persons. He has further denied that there was no attempt to robbery / dacioty or that the case made out against the accused is false at the instance of th local police. The witness has admitted that no goods / articles lying in the shop were taken by the accused and that in the physical altercation which took place the articles lying in the racks installed in the shop were not disturbed. He admits that on hearing their alarm public persons had also gathered and has voluntarily explained that when the public persons started gathering by that time the accused had run away. He further admits that at the time of the incident he had became very scared and confused. Witness has further admitted that he had seen the CCTV footage on the next day along with Manoj. He has denied that he has identified the accused only by estimation after seeing the CCTV footage. According to him he does not recollect the time when he had seen the footage. He has denied that he was tutored by State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 12 of 92 Manoj as to what to depose in the court. He has also denied that he has deposed falsely at the instance of Amar Nath Gupta being his employee or that he had falsely implicated the accused persons at his instance or that accused who are very poor persons and are daily wagers have been falsely implicated on account of the monetary dispute with the complainant as they had previously worked with him.
(16) PW10 Shyam Bahadur has deposed that he is working at the shop of Amar Nath Gupta, at WZ621, Gali No. 2, Shri Nagar, Delhi, who is having business of biditambaku. According to the witness on 4.2.2011, he along with Amarnath and Vijay Bahadur were present at the shop of Amar Nath and suddenly five persons entered the shop. Firstly one person entered the shop with a knife and put the knife on the back of Amar Nath and asked him to handover whatever he was having. According to the witness he tried to apprehend that person, at the same time other another person came in the shop along with the knife and that person was having shawl wrapped on his body and that person caught Vijay. The witness has deposed that he made the first person lie on the ground and at the same time third person also entered the shop who was having a katta in his hand and he took out the money from the galla / money box while remaining two persons remained standing near the counter. According to the witness Vijay had thrown a chair towards those State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 13 of 92 persons as a result some money had fallen on the ground and thereafter all the five persons ran away from the spot. He has deposed that he lifted the money which had fallen on the ground and handed over to Amar Nath and has further stated that while they (assailants) were running away from the spot, the knife and one shawl left on the shop. The witness has further deposed that he had identified those persons three times, first on the shop, second time in the police station and third time in the court. According to him the aforesaid incident took place at about 9:45 PM. The witness has seen towards all the five accused persons in the court and has identified them by pointing out towards them.
(17) Leading questions were put to the witness by Addl. PP for the State wherein the witness has deposed that there was no other person in the name of Shyam along with him it was Vijay Bahadur who was present in the shop. He has deposed that he had not lifted the chair and not thrown the same towards the accused and states that it was Vijay Bahadur who lifted the chair and had thrown the same towards the accused persons as a result two boys fell down. (18) In his cross examination by Ld. Defence Counsels, the witness has deposed that the 100 number call was made by Manoj Gupta who is son of Amar Nath Gupta and it was the local police who reached first about 1015 minutes of the call who were 45 officials whereas the the PCR officials came after about half an hour. State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 14 of 92 The witness has deposed that the police stayed at the spot for about 1½ to 2 hours during which period all the proceedings were conducted by the them. According to him, he did not sustain any injuries in the incident and his medical was also not conducted and states that the whole incident lasted hardly for about one minute. According to him the shawl was left by the assailants near the middle of the shop and the counter of the shop is situated at the opening. He deposed that he did not lift any chair to hit the assailant /badmas and voluntarily explained that it was Vijay Bahadur who had picked up the chair and hit the badmas. He admits that his signatures are not present on any of the documents prepared by the police at the spot. He has denied that since he was not present at the spot therefore the documents does not bear his signatures.
(19) According to the witness, Amar Nath had first handed over the knife to the police and the shawl was handed over to the police after 57 minutes. He has denied that the shawl and the knife were planted on the accused later on only connect the accused to the incident. He further denied that IO SI Umesh Rana is a frequent visitor to the shop of Amar Nath. According to him he is working in the said shop for about seven to eight years and he is aware that on previous occasion there was a dacoity incident in the shop of Amar Nath in the year 2005 and has voluntarily explained that he was not working in the shop at that time. He has denied the suggestion that State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 15 of 92 he had seen the accused previously because Sarfaraz was previously working at the shop of Amar Nath. He has deposed that soon after the incident i.e. 57 minutes, the daughter in law of Amar Nath and children came down to the shop. He admits that even the neighbours had gathered and according to him around 20 25 persons had gathered at the spot after the incident. He admits that Manoj was not present at the spot at the time of incident and he was informed about the incident by Amar Nath on telephone. According to him, he did not count the money which had fallen down and has explained that he lifted the same and handed over Amar Nath. He has deposed that the currency notes which he picked up were were open and not tied. He has denied that he had created this incident only to affirm the identity of the accused. He has denied that he in his statement to the police he had told that number of boys involved were three or four and has voluntarily explained that he had told them that five boys were involved in the incident. However, when the witness was confronted with his statement Ex.PW10/DX1 this fact regarding five boys being involved in the incident was not found mentioned whereas it was stated at point A to A1 that three to four boys were involved. The witness has deposed that there was a hathapai between him and the boy who had kept the knife on Sh. Amar Nath and he had told this fact to the IO in his statement. According to the witness there is no other Shyam working with Amar Nath and has voluntarily explained State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 16 of 92 that the other boy is Vijay who had hathapai with the second boy. He has deposed that during the winter season the shops are opened from morning till late night i.e. 9 to 10 PM and has voluntarily explained that by 10 PM all shops are closed. He has deposed that at the time of he incident the shop used to close by 10 PM however he does not know how many client were attended to by Amar Nath between 9 PM to 10 PM on the date of incident. According to him he had given some articles for sale to the counter between 9 PM to 10 PM. He has denied that he being the employee of Amar Nath he has been directed by him to make false deposition in the court against the accused and he is under pressure from him to depose in the aforesaid manner.
(20) PW11 Amar Nath Gupta is the complainant / victim who has deposed that he along with his family is residing on the given address at first floor and on his son Manoj is having business of gutkatambaku and he (witness) also used to sit at the shop. According to the witness on 4.2.2011 at about 9:45 PM he was sitting on the counter of the shop and Shyam Bahadur and Vijay Bahadur who are his servants, were also present at the shop. He has deposed that firstly one person entered his shop who was having a knife in his hand and covered his face with handkerchief and put the knife on his back and asked him to handover whatever he was having. According to the witness at the same time another person entered at the shop State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 17 of 92 who was having shawl around his body and was having knife and he attacked on Vijay Bahadur (vijay bahadur se ulajh gaya and there was a hatahapai between Vijay and that person) while first boy was keeping the knife on his back, his servant Shyam Bahadur caught hold of that person and in this process Shyam Bahadur, that boy and himself (witness) fell on the ground. The witness has deposed that at the same time, the third boy entered the shop who was having a pistol in his left hand and took out the cash from the galla / cash box and ran towards outside. The witness has deposed that in this process, his servant Vijay Bahadur lifted a chair and threw the same on the back of those persons as a result of which some money has fallen on the ground and finally those boys succeeded in running away from the spot but the knife which was put on his back and the shawl of the other person was dropped at the spot. The witness has deposed that some public persons made a call at 100 number and police came to the spot and his statement was recorded by the police vide Ex.PW11/A bearing his signatures at point A. According to the witness he handed over the knife and the shawl to the police who taken the same into possession vide memos Ex.PW11/B and Ex.PW7/B. (21) The witness is unable to tell whether he would be able to identify the accused or not but thereafter he correctly pointed towards two accused sitting in the court whose names he was unable State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 18 of 92 to tell. The court observed their names to be Sarfaraz and Naeem. He identified Naeem as the boy who had kept a knife on him and Sarfaraz as the boy who was having a shawl wrapped around him. (22) The witness correctly identified the knife with the brass handle with red and green circles and iron blade as the same which was left at the spot by Naeem and which was handed over by him to the IO, which knife is Ex.P1. The witness has also correctly identified the shawl which was handed over by him to the IO, which shawl is Ex.P2.
(23) In his cross examination by Ld. Defence Counsels, the witness was unable to tell who made 100 number call. According to him he did not give any information to the police regarding theft of rupees one lac at the time when PCR call was made and has voluntarily explained that this information he gave to the police after they came to the spot and made inquiries. He has deposed that the police reached the spot after 45 minutes of the call but he is unable to tell the exact number of police officers who had come to the spot after the call and states that in so far as he recollect they were at least 45 officials. According to him the PCR officials left after about 57 minutes but the local police remained till late night as they were recording statements and carrying out investigations. He has deposed that he did not sustain any injuries and has voluntarily explained that the boy had only kept the knife on him but he did not inflict any State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 19 of 92 injuries. He has deposed that the whole incident lasted for 1 to 1½ minutes and that the shawl was left by the assailants near the counter. He admits that he had stated that Shyam had lifted the chair and thrown on the assailant / badmas however he is unable to tell if the shawl which he had handed over to the police was sealed or seized and has voluntarily added that he only know that he had handed over it to the police, later proceedings he does not recollect. He has deposed that he had handed over the knife and the shawl to the police and has explained that first he handed over the knife and then the shawl. He has denied that it is for this reason that the shawl was planted upon the accused at a later stage that the seizure memo does not bear the date under his signatures or that the seizure memo of the shawl was prepared later on in connivance with the IO. He has further denied that the knife was never handed over to the police and was planted later on only to connect the accused to this case. He admits that he had not mentioned about the particular of the shawl i.e. its colour, design etc., in his statement made to the police. He further admits that he had mentioned about the theft of cash amount but not about the fallen down of the cash amount in his statement made to the investigating officer. This Court observed that in the statement Ex.PW11/A the witness had only mentioned the fact regarding the robbery of the cash amount from the galla, but not regarding some amount having fallen down while the boys were State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 20 of 92 running away.
(24) The witness has deposed that it was for the first time that on the date of incident he had met the IO SI Umesh Rana and thereafter he met him only in connection with the present case. He admits that even on one prior occasion there was a dacoity incident in his shop and has voluntarily explained that in so far as he recollects it was in the year 2005. He admits that his family resides at the first floor and states that his daughter in law came down to the shop after the incident was committed and has voluntarily added that even the neighbours had gathered. According to the witness he does not know who informed his son Manoj and has voluntarily explained that he himself was very perplexed and puzzled at that time. The witness has deposed that the spects which he is wearing are bifocal and the distant vision is around minus 2.5 and he is using bifocal lenses for the last 10 years. He has denied that the place where his shop is situated has the presence of public persons through out the day and has voluntarily explained that during the night hours not many persons are present. He has denied that Sarfaraz had been working with him previously and he did not give him his dues and when he came to him to demand the same, he implicated him in the present case. He has further denied that the site plan was prepared by the IO of his own and has voluntarily explained that he was present at the spot of incident. He denied that he is a habitual complainant and State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 21 of 92 filed a false complaint and that he has filed the false complaint against the accused only to settle his personal scores with the accused out of whom Sarfaraz was previously employed with him. (25) PW13 Nikhil Paul has deposed that on 05.02.2011 he was employed as an Editor at Laxmi Digital Studio at Pitampura, Delhi and on that day he had taken out the footage photographs from the CD handed over to him by SI Umesh Rana which photographs are Ex.PW5/A1 to Ex.PW5/A9. In his cross examination the witness has deposed that he did not prepare any copy of the CD and states that the photo footage was prepared with the help of Apple Software namely Final Cut Pro. He has denied that the photographs are doctored and manipulated with the help of the software or that the CD had been tampered to assist the investigating agency. Forensic Evidence:
(26) PW9 K.C. Varshney is the Assistant Director (Ballistics Division), FSL. He has deposed that on 14.6.2011 one sealed parcel sealed with the seal of U.R was received in FSL and on opening the same one country made pistol of .315" bore was taken out and marked as F1 by him. According to him on examination it was found that the firing pin of the aforesaid country made pistol was absent and it was not in working order and required repair to bring it into the working order. According to the witness the pistol was a firearm State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 22 of 92 as defined under the Arms Act. He has proved his detailed report in this regard vide Ex.PW9/A. In his cross examination the witness has admitted that during examination he take the help of his Scientific Assistant. He has denied the suggestion that he has not personally examined the exhibit.
Police / Official Witnesses:
(27) PW1 Ct. Rajesh Kumar is formal witness who has been examined by way of affidavit vide Ex.PW1/A. He has proved the RC No. 74/21/11 dated 14.6.2011 and the acknowledgment which are Ex.PW1/B and Ex.PW1/C. In his cross examination the witness has deposed that he made ravangi while leaving the police station for FSL however he does not remember its number. According to him only one parcel containing rounds was open while other pullandas were sealed. He has denied that suggestion that she has deposed falsely at the instance of the Investigating Officer. (28) PW2 Ct. Dharamender is a formal witness and has been examined by way of affidavit vide Ex.PW2/A and has relied upon the RC No. 74/21/11 and the acknowledgment which are Ex.PW1/B and Ex.PW1/C. In his cross examination the witness has deposed that he made wapsi in the DD register when he returned with the envelope and acknowledgment but he does not recollect the said DD State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 23 of 92 number.
(29) PW3 ASI Tej Singh is also a formal witness and has been examined by way of affidavit Ex.PW3/A and has proved the endorsement on the rukka vide Ex.PW3/B, the kayami vide DD No. 4A which is Ex.PW3/C and the copy of FIR which is Ex.PW3/D. This witness has not been cross examined on behalf of the accused. (30) PW4 HC Ravinder Nath has been examined by way of affidavit vide Ex.PW4/A being formal in nature. He was working as MHC (M) and has proved various entires made by him in Register No. 19 and 21 copies of which are Ex.PW4/B, Ex.PW4/C, Ex.PW4/D, Ex.PW4/E, Ex.PW4/F, Ex.PW4/G and Ex.PW4/H. In his cross examination the witness has admitted that there is an over writing on the entry no. 3337 and 3340 but he has denied that it is on account of manipulation done by him. He has denied that the entries have been manufactured by him at the instance of the investigating officer.
(31) PW7 Ct. Manjeet Yadav has deposed that on 4.2.2011 he was on emergency duty from 8 PM to 8 AM and at about 9:45 PM pursuant to DD NO. 76B he along with ASI Umesh Rana reached the spot i.e. WZ 621, Gali No.2, Shri Nagar where they met the complainant Amar Nath. According to the witness, Amar Nath handed over a knife to SI Umesh Rana which according to him was State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 24 of 92 used in the offence and while leaving the assailants, one of the assailants had dropped the same and IO prepared the khakha of the said knife on a paper which is Ex.PW7/A. The witness has deposed that the knife was measured and its total length was found to be 30.7 cm, handle was 14.4 cm, length of blade was 16.3 cm, and the width of blade was 2.3 cm., handle was of brass whereas the blade was of iron with design of red and green circles on the same. The witness has deposed that the said knife was converted into pullanda and was sealed with the seal of UR and the seal was thereafter handed over to him after which IO prepared the seizure memo of the same vide Ex.PW7/B. The witness has deposed that thereafter IO recorded the statement of complainant Amar Nath and converted the same into rukka which he handed over to him (witness) for registration of the FIR. He has deposed that he went to the police station along with the rukka and gave it to the duty officer ASI Tej Singh and after the FIR was registered he came back to the spot along with the original rukka / tehrir and copy of FIR at about 12:45 AM and handed over the same to SI Umesh Rana. The witness has deposed that thereafter, SI Umesh Rana conducted inquiries in the presence from the neighbours but could not find any clues. The witness has further deposed that before the rukka was prepared by the IO, Amar Nath also handed over a shawl to SI Umesh Rana informing that it was dropped by one of the assailants.
State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 25 of 92 (32) Leading questions were put to the witness by the Ld. Addl. PP for the State wherein the witness has admitted that after making inquires from neighbours when no clue was found, he along with the IO reached back to the spot where the complainant showed to the IO CC TV footage /recording and after seeing the same the IO directed him to save the same and also get prepared a CD of the said footage. He has deposed that he did not mention this fact previously because he forgot the same but he had informed this fact to the IO in his statement vide Ex.PW7/PX1. The witness has correctly identified the knife is Ex.P1. In his cross examination the witness has identified the complainant Amar Nath Gupta and his servant Shyam Yadav stating that he had gone to the spot and he was present there. (33) The witness has deposed that the IO did not make any separate DD entry in the register and has voluntarily explained that they were handed over the DD No. 76B pursuant to which they started from the police station. He admits that the cloth pullanda in which the knife was sealed bears the particulars of the case i.e. case FIR number and the sections along with the date with the same ink.
Court has observed that there was an overwriting on the date and 5.1.11 appears to have been made to 4.1.11 which portion was encircled with the red ink by the court. The witness does not recollect if the IO had written the details of the case on the cloth pullanda or not and has voluntarily explained that he was involved in other work State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 26 of 92 at that time. He admits that the cloth pullanda does not bear his signatures and has voluntarily explained that it only bears the signatures and seal of the IO. He has denied that this fact was not mentioned by him as no such shawl was handed over by Amar Nath Gupta to the IO and now he is deposing falsely on this aspect on the directions of the IO / complainant. According to him he had seen where the CC TV camera was installed at the shop and has explained that the control room with regard to the CC TV footage was on the first floor. He has deposed that he had also seen the footage along with the IO and the IO did not retrieve the footage on any CD / pen drive nor any soft copy of the same was prepared in his presence on that day and has voluntarily explained that the IO only directed the owner of the shop i.e. Amar Nath to save the said footage and prepare a CD of the same and hand over to him. He has deposed that he left the spot at 12:15 AM and reached the police station withing 57 minutes.
(34) The witness has deposed that when he reached the spot along with the IO on receipt of the information, there were about 1012 public persons present. According to him the IO had made inquiries from the said persons and has voluntarily explained that when they first reached the spot, the public persons were removed from the spot of incident by the IO. He has denied that there was no CC TV camera at the spot and has voluntarily explained that it was State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 27 of 92 installed. He has denied that the knife and the shawl have been planted at the spot later on only to connect the various accused with the offence which was done by the Investigating Officer in connivance with the complainant or that no proceedings were conducted by the IO at the spot and all documentation was done in the police station which he signed on the directions of his senior officers.
(35) PW8 Romil Baaniya, Addl. DCP1, North West District has deposed that on 21.7.2011 he was posted as Addl. DCP1, North West District and on that his staff officer put up the file pertaining the present case regarding grant of sanction under Section 39 of the Arms Act as against the accused Sarfaraz @ Sonu S/o Abdul Ahad R/o WZ323, Village Shakurpur and Ward No. 31, Village Saharsha Basti, Distt. Saharsha, Bihar. He has deposed that after going through the final report u/s 173 Cr.PC, FSL report and various documents including sketch of the fire arm and ballistic examination report, seizure memos, statement of the witnesses, he accorded the Sanction u/s 39 of the Arms Act in view of the powers delegated to his vide order No. 3674080/C&T/ACI/PHQ dated 9.11.2000 which Sanction is Ex.PW8/A bearing his signatures at point A. In his cross examination the witness has deposed that he did not consider any document and he accorded the sanction on the asking of the IO in a mechanical manner without any application of mind. He has deposed State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 28 of 92 that he did not personally see the fire arm and has voluntarily explained that he only saw the sketch of the same.
(36) PW12 ASI Madan Mohan has deposed that on 14.03.2011 he was posted at Police Station Subhash Place and on that day on the directions of the SHO he came at court No. 102, at Rohini court complex and took further JC remand of the accused Naeem and Arif. According to him when he was returning from the court, Shyam Bahadur, victim met him, near the lock up and he identified accused Naeem and Arif who were going to the lock up from the courts and told him that there persons Naeem and Arif committed the incident of this case with him. The witness has deposed that Shyam Bahadur accompanied him to the police station where SI Umesh Rana met them there who was the IO of this case. According to the witness, he handed over the case file to him and SI Umesh Rana recorded statement of Shyam Bahadur. He has correctly identified accused Naeem and Arif in the court.
(37) In his cross examination the witness has deposed that he does not remember the time when he made his departure in the rojnamcha. According to him him prior to the present incident he did not know Shyam Bahadur and has voluntarily explained that after the incident he has seen him in the police station as he used to come to the IO in connection with the investigations in the present case. He has deposed that first time he came to know about Shyam Bahadur State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 29 of 92 was when he had come to the police station for investigations of the present case in the IO's room where he was also siting. He admits that after the incident / registration of the FIR he met Shyam Bhadur on number of occasion and has voluntarily explained that he used to met him when he came to met the IO since he sit in the same room. (38) The witness has deposed that on 14.03.2011 he had met Shyam Bahadur outside the lockup gate, Rohini court complex. He has deposed that Shyam Bahadur had identified the accused Naeem and Arif while they were being taken to the lock up. According to the witness he had told the IO that Shyam Bahadur had identified the accused Naeem and Arif outside the lock up but did not lodged a separate DD in respect of the same. He has denied that neither him nor Shyam Bahadur had ever come to the court on 14.03.2011. He has further denied that Shyam Bahadur had never pointed out the accused Naeem and Arif to him as the assailants or that he has created this instance only to connect the accused with the case and work out the same. He has deposed that his statement was recorded on the same day i.e. on 14.03.2011 in the police station itself. (39) PW14 HC Somdev has deposed that on 13.02.2011 he was posted at Police Station Subhash Place and on that day he along with SI Umesh Rana left the police station at about 5.20PM for the investigation of this case. He has deposed that at about 9.00PM they reached at M Block, Shakurpur JJ Colony, near Mother Dairy Booth, State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 30 of 92 Delhi where one secret informer met SI Umesh Rana and he informed SI Umesh Rana that one person shown in the CCTV footage of the commission of the offence of this case was seen by him and he was present on the second floor of house number WZ 323, Village Shakurpur, Delhi. Thereafter they proceeded to the above said house and on the way SI Umesh Rana asked 45 public persons to join the police proceeding after telling the fact to them but none agreed and left the place without informing their names and addresses and without wasting time they reached at the above said house and secret informer left the place after pointing out the house and they reached on the second floor of the house and one person namely Shahzad met them there and they compared his face with the photographs of CCTV footage and when they found that it was matching then he was interrogated by SI Umesh Rana and he confessed about his involvement of the commission of dacoity on 04.02.2011 at WZ621, Gali No. 2, Sri Nagar. The witness has deposed that hereafter SI Umesh Rana arrested Shehzad in this case vide arrest memo Ex.PW14/A, his personal search was taken vide Ex.PW14/B and his disclosure statement was recorded vide Ex.PW14/C. The witness has further deposed that at the instance of accused Shehzad, one blue colour jeans pant and one full sleeves woolen Tshirt having blue and white linings from almirah of the house which were seized vide Ex.PW14/D. According to the witness State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 31 of 92 the accused Shehzad also pointed out the another room where his co accused Md. Azad Alam was residing there and meanwhile SI Umesh Rana called Ct. Sri Niwas from the police station and accused Shehzad was sent to hospital for medical examination with Ct. Sri Niwas and thereafter on the direction of SI Umesh Rana another room which was pointed by accused Shehzad was opened from inside and one person namely Md. Azad Alam was found inside the room alongwith his mother. The witness has deposed that Md. Azad Alam was interrogated by SI Umesh Rana and he also confessed about his involvement in the commission of decoity committed on 04.02.2012. According to the witness Md. Azad Alam further confessed that his share amount was Rs. 3000/ and he was thereafter arrested by SI Umesh Rana vide Ex.PW14/E and his personal search was conducted vide Ex. PW14/F after which his disclosure statement was recorded vide Ex.PW14/G. He has deposed that at the instance of accused Md. Azad Alam, Rs. 2300/ were recovered from the almirah of his house and same was kept in cloth pullanda and sealed with the seal of UR and seized the same vide seizure memo Ex.PW14/H and thereafter they returned back to police station.
(40) The witness has deposed that on 18.02.2011 he again joined the investigation with SI Umesh Rana and they left the Police Station at about 8.20 p.m. and after some distance from police station State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 32 of 92 a secret informer met them and he informed SI Umesh Rana that Md. Arif involved in this case was coming at his house at M7, Sample quarters, JJ Colony, Shakur Pur at about 9.00 p.m. SI Umesh Rana asked 56 public persons to join the police proceedings but they left the spot without giving their names and addresses. The witness has deposed that thereafter they reached at the above said address and took positions by concealing themselves on the roof of one of the houses from where they could see the movements of persons around the house. He has deposed that at about 9.20 p.m. Md. Arif who was known to him previously being involved in other criminal cases came to his house and immediately apprehended accused Md. Arif who was interrogated by SI Umesh Rana who confessed about his involvement in this case and thereafter SI Umesh Rana arrested Md. Arif vide Ex.PW14/J and his personal search was taken vide Ex. PW14/K after which his disclosure statement was recorded by SI Umesh Rana vide Ex. PW14/L. The witness has deposed that at the instance of accused Md. Arif one pant of black colour and one pink colour shirt was recovered from one iron almirah of house and the same were kept in a clothpullanda and sealed with the seal of UR by SI Umesh Rana and seized the same vide seizure memo vide Ex.PW14/M. According to the witness at the instance of accused Md. Arif one buttondar knife was recovered from the box of the bed and sketch of knife was prepared by SI Umesh Rana and after is State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 33 of 92 measurements its total length was found 23.7 cm. Rampur UP Best Steel was written on the blade of knife. The witness has deposed that the khakha of knife was prepared which is Ex.PW14/N and thereafter converted the same into apullanda and sealed with the seal of UR, after which he seized the same vide memo Ex.PW14/O . (41) The witness has deposed that on 21.02.2011 he again joined the investigation with SI Umesh Rana and left the Police Station at about 2.45 p.m. and they reached near Kabristan, JJ Colony, H Block, Shakur Pur, Delhi where they met a secret informer who informed them that Naeem @ Naimuddin involved in this case would be coming near Kabristan and he also gave description of Naeem @ Naimuddin. According to the witness at about 4.30 p.m. informer pointed out towards one boy coming from ring road side on the road having Kabristan on one side as Naeem and on his pointing out they apprehended the boy and interrogated him and he disclosed his name as Naeem and he further disclosed his involvement in the incident which took place at WZ621, Gali No. 2, Sri Nagar and thereafter the IO arrested Naeem vide arrest memo Ex.PW14/P his personal search was conducted vide Ex.PW14/Q and thereafter his disclosure statement was recorded vide Ex.PW14/R. The witness has deposed that thereafter Naeem took them to his house at H221, 1st Floor and from there he got recovered one blue jeans pant and white shirt from the room adjoining the stair State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 34 of 92 kept on the top of iron box and the said clothes were taken into possession vide memo Ex.PW14/S. According to the witness the accused Naeem thereafter took them to the spot and pointed out the shop WZ621 as the place from where he and his associates committed the robbery on 04.02.2011 vide pointing out memo Ex.PW14/T. (42) The witness has deposed that on 17.03.2011 he joined the investigation along with SI Umesh Rana and they along with one accused Surfraj @ Sonu who was already under PC Remand went to WZ48, Village Shakur Pur, Delhi at his instance they reached at 3rd floor of house i.e. Room No. 10 and room was found locked and the owner Raj Singh was called there and asked key of the room but he replied that he had given the room on rent to accused Sarfraj after which the lock of the room was broken. The witness has deposed that at the instance of Sarfaraz one katta was recovered from the room at left side left corner under the clothes in a bag of red colour and thereafter the IO prepared the Sketch of katta and took measurements and total length of katta from point of barrel to handle was found 26.0 cm diagonally and the sketch is Ex. PW14/T1 after which the was seized vide Ex.PW14/T2. The witness has deposed that the accused Sarfraj also pointed out the place of incident vide pointing out memo vide Ex.PW14/T3 and that SI Umesh Rana also prepared the site plan of place of recovery of katta vide State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 35 of 92 Ex.PW14/T4.
(43) Leading questions were put to the witness by Ld. Addl. PP for the State wherein the witness has admitted that on 14.02.2011 accused Shehzad pointed out the place of incident vide Ex.PW14/T5. He has further admitted that on 13.02.2010 accused Md. Azad Alam pointed out the place of incident vide Ex.PW14/T6 and that on 19.02.2011 accused Md. Arif pointed out the place of incident vide Ex. PW14/T7.
(44) The witness has correctly identified in the court the accused accused Md. Azad Alam, Shehzad, Naeem, Md. Arif and Surfraj. He has also identified the country made pistol Ex.P3 as the same as recovered at the instance of accused Surfraj. He has also identified the buttondar knife Ex.P4 as the same which was recovered at the instance of accused Md. Arif. Witness has further identified the blue colour jeans pant and one white colour shirt Ex.P5 as the same as recovered at the instance of accused Md. Naeem. He has also identified the light blue colour jeans pant and one full sleeves Tshirt with cap having white and black strips Ex.P6 as the same recovered at the instance of accused Shehzad. The witness has further identified that dark grey colour pant having linings and small checks and pink colour shirt Ex.P7 as the same as recovered at the instance of accused Md. Arif.
State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 36 of 92 (45) In his cross examination by Ld. Defence Counsel, the witness has deposed that when they left the police station on 13.02.11, he did not made any separate departure and has voluntarily explained that it was a combined departure by SI Umesh Rana whose DD number he is unable to tell. The witness has deposed that the house where they had gone for investigations WZ323, Shakurpur was three floor which is including ground floor and at the time when they knocked the door, the accused Shehzad was alone in the house. He has denied that Shahzad did not make any disclosure to the police or that no recovery of clothes ie. Jeans, pants, full sleeves woolen T shirt was recovered from the Almirah of Shehzad. According to the witness Mohd.Azad is residing on the same floor as that of accused Shehzad and has voluntarily explained that it was the third room and is mother came later to the spot but when they reached there she was not present. He admits that the documents of arrest and other memos prepared by the IO does not bear the signatures of the mother of the Mohd. Azad and has voluntarily explained that she had refused to sign. He has admitted that the area where the house of WZ323 is situated in the residential area and the landlord also residing at the vicinity and that the landlord could not join in the investigations nor any neighbour was joined during the investigations. (46) The witness has deposed that on 18.02.11, when he joined the investigations initially, they were in a Santro Car of the IO State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 37 of 92 and later on they were on foot. He has unable to tell if the IO had shared the secret information regarding Arif with any senior officers or had incorporated the same in writing. He admits that Arif was known to him prior to this incident being a local criminal. He has denied that only to work out the present case, Arif had been falsely implicated. He admits that all the documents relating to recovery of knife and apprehension/arrest of the accused do not bear the signatures of any public witness. He further admits that knife which was allegedly recovered from the possession of accused is easily available in the market and has voluntarily explained that knife is secretly sold in the market. According to the witness there was no identity mark which could distinguished this knife as the one got recovered by the accused Arif. He denied that Arif did not make any disclosure regarding his involvement in the present case or that all documents were prepared in the PS only to workout the present case. (47) The witness has further admitted that the kabristan at J.J.Colony, HBlock, Shakurpur is under the wakf board and the incharge / care taker are always present there. He admits that the road in front of the kabristan is a motorable road with a heavy traffic round a clock. He did not offer his search prior to conducting the search of the accused Naeem and states that in his presence, IO also did not offer his search prior to conducting the search of the accused Naeem. He further admits that all the documents regarding State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 38 of 92 apprehension and arrest of Naeem and also his disclosure statement do not bear the signatures of any public persons. The witness has deposed that on 17.03.11, he had joined the investigations from the PS itself and we went to WZ48 in a private Car Santro of the IO. WZ48 has four floors including the ground floor and has voluntarily explained that there is a hall on the ground floor which moves on the top floor. He admits that the Katta was got recovered in the presence of the landlord but the signatures was not present at the time of recovery of the said katta. The witness has denied that he had signed the documents while sitting in the police station at the instructions of the senior police officers.
(48) PW15 SI Umesh Rana is the investigating officer of this case who has proved the various proceedings and memos prepared by him during investigations. He has deposed that on 04.02.2011 he was posted at police station Subhash Place on that day he was on emergency duty and he received DD NO. 76B which is Ex.PW15/A and thereafter he along with Ct. Manjeet reached at WZ621, Gali No. 2, Sri Nagar where complainant Amar Nath Gupta met them. The witness has deposed that Amar Nath produced one buttondar knife before him and informed him that a robbery was committed at his shop by two persons and Rs.3035 thousand has been robbed from his shop and the robbers left the knife at his shop during the incident. He has deposed that he prepared the sketch of the knife State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 39 of 92 vide Ex.PW7/A and also took its measurements and mentioned all the measurements and description of the knife in the sketch and thereafter took the same into possession vide memo Ex.PW7/B after which he recorded the statement of Amar Nath Gupta vide Ex.PW11/A on the basis of which he prepared the rukka Ex.PW15/B and got the FIR registered through Ct. Amarjeet. According to the witness Amar Nath Gupta also handed over to him a shawl stated to be left by robbers which shawl he had taken into possession. According to him in the meanwhile Crime Team officials reached at the spot and they inspected the site and crime team photographer took photographs but no chance prints were found at the spot and thereafter he prepared the site plan at the instance of the complainant Amar Nath Gupta vide Ex.PW15/C. According to the witness he thereafter recorded the statements of Shyam Bahadur and Vijay Bahadur and thereafter they reached at the first floor of the house and complainant Amar Nath Gupta had shown the CCTV footage to them. The witness has deposed that he directed Amar Nath Gupta to preserve the CCTV footage about the commission of offence and also directed him to prepared the CD of the CCTV footage and handed over to him. He has also prepared the seizure memo of the shawl given to him by Amar Nath Gupta vide Ex.PW11/B. State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 40 of 92 (49) The witness has further deposed that on 05.02.2011 the complainant Amar Nath Gupta, Shyam Bahadur and Vijay Bahadur came at the police station in the morning time and the photographs of the known criminals have been shown to them and meanwhile Manoj, son of the complainant Amar Nath Gupta, also reached to the police station and he handed over two CD of the CCTV footage to him and he seized the both CD vide seizure memo Ex.PW15/D. He has deposed that he checked the contents of the CD which was kept by him with file and found that one boy was entering into the shop along with knife and three persons entered into the shop and one person remained outside the shop and they committed the robbery in the shop with Amar Nath Gupta, Shyam Bahadur and Vijay Bahadur. According to him two robbers were having knives in their hand and one was having a fire arm looking like a katta. The witness has deposed that he also found legs portions of fifth robber outside of the shop and he recorded the statement of the Amar Nath Gupta and Manoj after which he went to Laxmi Photo Studio, Mahendra Park Chowk. Nikhil employee of the Laxmi Photo Studio prepared the photographs from the CD of the CCTV footage and he handed over nine positive photographs which are Ex.PW5/A1 to Ex.PW5/A9 to him with the CD.
(50) The witness has deposed that on 12.02.2011 Manoj Gupta came at the police station and handed over two CD to him and State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 41 of 92 he told him that the contents of the CD shows that two robbers came at his shop and prepared the recce of his shop approximate two hours before the incident and he seized both the CD vide seizure memo Ex.PW15/E and kept the one CD with his file and he deposited the other CD in the malkhana. The witness has deposed that on 13.02.2011 he along with HC Som Dev left the police station at about 5.20 PM for the investigation of this case and at about 9.00 PM they reached at M Block, Shakurpur JJ Colony, near Mother Dairy Booth, Delhi where one secret informer met him and he informed him that one person shown in the CCTV footage of the commission of the offence of this case was seen by him and he was present on the second floor of House number WZ 323, Village Shakurpur, Delhi. According to the witness thereafter they proceeded to the above said house and on the way he asked 45 public persons to join the police proceeding after telling the fact to them but none agreed and left the place without informing their names and addresses and without wasting time they reached at the above said house and secret informer left the place after pointing out the house and they reached on the second floor of the house and one person namely Shahzad met them there and they compared his face with the photographs of CCTV footage and thereafter he arrested Shehzad vied Ex. PW14/A took his personal search vide Ex.PW14/B and recorded his disclosure statement vide Ex.PW14/C. He has deposed that at the State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 42 of 92 instance of accused Shehzad one blue colour jeans pant and one full sleeves woolen Tshirt with cap having blue and white strips from almirah of the house and Games was written on the back side of the TShirt which were seized vide memo Ex.PW14/D. According to the witness the accused Shehzad pointed out the another room where his coaccused Md. Azad Alam was residing there and meanwhile he called Ct. Sri Niwas from the police station and accused Shehzad was sent to hospital for medical examination with Ct. Sri Niwas. The witness has deposed that thereafter on his directions another room which was pointed by accused Shehzad was opened from inside and one person namely Md. Azad Alam was found inside the room alongwith his mother. According to the witness he was interrogated by him and he also confessed about his involvement in the commission of dacoity committed on 04.02.2012. He arrested the accused Azad Alam vide Ex. PW14/E, took his personal search vide Ex.PW14/F and recorded his disclosure statement vide Ex.PW14/G and at the instance of accused Md. Azad Alam Rs. 2300/ were recovered from the almirah of his house and same was kept in cloth pullanda and sealed with the seal of UR and seized the same vide seizure memo Ex.PW14/H. The witness has deposed that accused Shehzad pointed out the place of incident vide Ex.PW14/T5, accused Md. Azad Alam pointed out the place of State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 43 of 92 incident vide Ex. PW14/T6 .
(51) According to the witness, on 18.02.2011 he along with HC Som Dev left the police staiton at about 8.20 p.m. after some distance from police station a secret informer met them and he informed him that Md. Arif involved in this case was coming at his house at M7, Sample quarters, JJ Colony, Shakur Pur at about 9.00 p.m. and thereafter they reached at the above said address and took positions by concealing ourselves on the roof of one of the houses from where they could see the movements of persons around the house but at about 9.20 p.m. Md. Arif who was known to them previously being involved in other criminal cases came to his house and they immediately apprehended accused Md. Arif and arrested him vide Ex.PW14/J and took his personal search vide Ex.PW14/K after which his disclosure statement was recorded vide Ex. PW14/L. The witness has further deposed that at the instance of accused Md. Arif one pant of black colour and one pink colour shirt was recovered from one iron almirah of house and the same were kept in a clothpullanda and sealed with the seal of UR and seized the same vide seizure memo vide Ex.PW14/M. The witness has further deposed that at the instance of accused Md. Arif one buttondar knife was recovered from the box of the bed whose sketch was prepared and after taking its measurements its total length was found 23.7 cm. Rampur UP Best Steel was written on the blade of State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 44 of 92 knife and its khakha was prepared vide Ex.PW14/N and seized vide Ex.PW14/O and accused Md. Arif pointed out the place of incident vide Ex. PW14/T7. The witness has deposed that on 21.02.2011 they reached near Kabristan, JJ Colony, H Block, Shakur Pur, Delhi where at the instance of secret informer the accused Naeem @ Naimuddin was apprehended and arrested vide Ex. PW14/P, his personal search was taken vide Ex. PW14/Q and his disclosure statement was recorded vide memo PW14/R. According to the witness the accused Naeem took them to his house at H221, First Floor and from there he got recovered one blue jeans pant and white shirt from the room adjoining the stair kept on the top of iron box and the said clothes were taken into possession and converted into pullanda and seized vide Ex.PW14/S and thereafter the accused took them to the spot and pointed out the shop WZ621 as the place from where he and his associates committed the dacoity on 04.02.2011 and pointing out memo of the same is Ex. PW14/T. (52) The witness has deposed that on 05.03.2011 he received information from the police of Police Station Moti Nagar about the arrest of the accused Sarfaraz and he along with Ct. Bacchu Singh reached at Rohini Courts and he interrogated accused Sarfaraz with the permission of the court and he confessed about his involvement in the present case and he arrested him vide Ex.PW15/F. He has State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 45 of 92 deposed that he recorded his disclosure statement vide Ex.PW15/G and also moved an application for the TIP proceedings of the accused Sarfarz and accused was sent to the JC. He has deposed that on 16.03.2011 he came at the Rohini courts and on the production warrant, accused Sarfarz was produced before the court and he was remanded for two days police custody. The witness has deposed that on 17.03.2011 he again along with HC Som Devay HC Som Dev and one accused namely Surfraj @ Sonu who was already under police custody Remand went to WZ48, Village Shakur Pur, Delhi at his instance and thereafter they reached at 3rd floor of house i.e. Room No. 10 and room was found locked. The witness has deposed that the house owner Raj Singh was called there and asked key of the room but he replied that he had given the room on rent to accused Sarfraj and thereafter lock of the room was broken and at his instance one katta was recovered from the room at left side left corner under the clothes in a bag of red colour. Sketch of katta was prepared by him and he took measurements. The total length of katta from point of barrel to handle was found 26.0 cm diagonally and the sketch is Ex.PW14/T1. The Katta was thereafter kept in a cloth pullanda and sealed the same with seal of UR and seized the same vide seizure memo vide Ex.PW14/T2. According to the witness the accused Sarfraj also pointed out the place of incident vide pointing out memo vide Ex.PW14/T3. The witness has deposed that he also prepared State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 46 of 92 the site plan of place of recovery of katta vide Ex.PW14/T4 . The witness has deposed that during investigations he obtained three live cartridges vide Ex.PW15/H from the Old Police Line, Civil Lines with the permission of the DCP and the same were sent to FSL through Ct. Rajesh who also took exhibits of this case from the malkhana vide RC No. 74/21/11. He has also collected the FSL result which is Ex.PW9/A. He has deposed that during his investigations he also moved application for TIP proceedings of the accused Mohd. Azad Alam, Sahzad, Mohd. Arif and Naeem and during the TIP proceedings Shyam Bahadur and Vijay Bahadur correctly identified accused Sahzad. He has deposed that all other accused persons Mohd. Azad Alam, Mohd. Arif, Naeem and Sharfarz refused to take part in the TIP Proceedings. The witness has deposed that he obtained a Sanction U/s 39 Arms Act which is Ex.PW8/A. He has correctly identified the accused Mohd. Azad Alam, Sahzad, Naim, Mohd. Arif and Sarfaraz in the court. The witness has also correctly identified the case property i.e. CD Ex.PX1 seized by him on 05.02.2011 and also identified CD Ex.PX2 seized by him on 12.02.2011. The witness has also identified the buttondar knife and shawl Ex.P1 and Ex.P2 as the same produced by complainant Amar Nath Gupta, allegedly left by the robbers at the spot. He has also identified that country made State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 47 of 92 pistol Ex. P3 as the same which was recovered by accused Sarfaraz; buttondar knife Ex.P4 as the same as recovered at the instance of accused Md. Arif, blue colour jeans pant and one white colour shirt Ex. P5 as the same as recovered at the instance of accused Md. Naeem ; one light blue colour jeans pant and one full sleeves Tshirt with cap having white and black strips Ex.P6 as the same as recovered at the instance of accused Shehzad; one dark grey colour pant having linings and small checks and pink colour shirt Ex.P7 as the same as recovered at the instance of accused Md. Arif; CD Ex.P8 as the same as seized by him on 05.02.2011 which was produced by Manoj; another CD Ex.P9 as the same as seized by him on 12.02.2011 which was produced by Manoj; and Rs 2300/ in denomination of Rs 100/ Ex.P10 as the same as recovered from the possession of accused Mohd. Azad Alam.
(53) In his cross examination by Ld. Defence Counsels, the witness has deposed that when he received DD No.76B, it did not contain the name of any of the suspect. He has denied that the complainant was known to the accused particularly Sarfaraz who had worked with him. He admits that no fingerprints were got lifted from the said knife and has voluntarily explained that since the knife had been handed over to him by the complainant there was no point in getting any prints lifted from the same. He admits that the CD of the State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 48 of 92 camera containing the recording of the incident was handed over to him by Manoj Kumar, the son of the complainant. According to him he did not get conducted any videography of the shop as soon as he reached there and that both the shawl and knife allegedly handed over by the complainant claiming that have been left by the accused are articles which were easily available in the market. He admits that he has not shown the place where the CCTV camera has been installed in the site plan. He has denied that no CCTV camera was installed at the spot and it is for this reason, he had not shown the CCTV camera in the site plan. He has denied that the complainant was known to him prior to the incident. He has denied that statement of complainant was written in the Police Station and has voluntarily explained that the first statement was written at the spot whereas the later statement was recorded in the Police Station. The witness has admitted that in the first statement made by the complainant, there is no mention of the CCTV footage. He does not recollect if he had gone to the shop on 12.02.11 and is unable to tell the number of floors in house No. WZ323, Shakurpur and has voluntarily explained that they had gone on the 2nd floor and at the time when they knocked the door, the mother of the accused Shahzad was also with her. He has deposed that he did not take any legal action against the said persons who had refused to join the investigations. He has denied that Shahzad did not make any disclosure to the police or that State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 49 of 92 he was compelled to put the signatures on blank papers or that Shahzad was not arrested in the manner in which he has deposed or that he was called to the police station and there implicated in the present case. According to him he did not take the signatures of the mother of Shahzad on any of the document as she did not know how to sign. He also denied that since the mother of the Shahzad was not present and Shahzad was arrested in the Police Station after he was called there for interrogation, it is for this reason that document do not bear the signatures of any of public person.
(54) The witness has deposed that Mohd.Azad is residing on the Second Floor of the same house as that of accused Shehzad and has voluntarily explained that it was two room away from the room of Shahzad. He has denied that the documents do not bear the signatures of any public person because Mohd.Azad Alam was arrested at the spot and all documents were prepared later on in the PS and was only to made to sign blank papers which were converted into various memos by the Investigating Officer of his own later on. According to the witness on 18.02.11, when he joined the investigations initially, they were in his Santro Car and later on they were on foot and he had incorporated the secret information in the Rojnamcha but he does not recollect the DD number. The witness has admitted that M7, Sample Quarters, J.J.Colony Shakurpur is a residential area and the shops are slightly ahead of the area. The State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 50 of 92 witness has deposed that he had not given any notice to the persons who had refused to join the investigations. He has deposed that Arif was not known to him prior to this incident. According to him there was no identity mark which could distinguish this knife as the one got recovered by the accused Arif except that on the handle the word 'RAMPUR UP BEST STEEL' was inscribed on the same. He has denied that Arif did not make any disclosure regarding his involvement in the present case or that all documents were prepared in the Police Station only to workout the present case. He has admitted that disclosure of Arif Ex.PW14/L bearing his signatures at point C has an overwriting on the date and month and has voluntarily explained that her want to explain that while writing the date and month due to inadvertence, the month was wrongly recorded which he immediately corrected.
(55) The witness has admitted that the Kabristan at J.J.Colony, HBlock, Shakurpur is under the wakf board and the incharge/care taker are always present there and has voluntarily explained that he did not meet any official of the Kabristan over there. He admits that the road in front of the kabristan is a motorable road with a heavy traffic round a clock. According to the witness even after Naeem was apprehended, nobody was prepared to join. He has deposed that he did not prepare any site plan of the place pointing out the spot where Naeem was apprehended nor he did offer his State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 51 of 92 search prior to conducting the search of the accused Naeem. He admits that all the documents regarding apprehension and arrest of Naeem and also his disclosure statement do not bear the signatures of any public persons. The witness has deposed that on 17.03.11, he had joined the investigations from the police station itself and we went to WZ48 in his private Car Santro. WZ48 has three floors excluding the ground floor. He admits that entire premises is on rent and the landlord of the premises does not reside there and has voluntarily explained that he resides at Raj Nagar. He admits that the Katta was got recovered in the presence of the landlord and as voluntarily explained that he was present outside the room at the time of recovery. The witness has admitted that the signatures of the landlord are not present on the documents relating to the recovery of the katta. The witness has denied the suggestion that he had prepared the documents while sitting in the police station at the instructions of the senior police officers. He has also denied the suggestion that the accused persons had been called to the police station on the pretext of inquiry, where the present false case was foisted upon them. The witness has further denied the suggestion that he recorded the statement of Shyam Bahadur and Vijay Bahadur himself or that he fabricated the same as per his convenience. He has further denied that he has deposed falsely.
State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 52 of 92 STATEMENT OF ACCUSED & DEFENCE EVIDENCE:
(56) After completion of prosecution evidence, the statements of the accused persons were recorded under Section 313 Cr.P.C.
wherein all incriminating evidence were put to them which they have denied.
(57) According to accused Sarfaraz @ Sonu he is innocent and has been falsely implicated in this case after by the police after lifting him from his native place at Bihar. He has stated that previously he was working at the shop of the complainant and he had not paid his dues for three months and when he demanded the same he falsely implicated him in this case in connivance with the police. (58) According to accused Shahzad he is innocent and has been falsely implicated in this case by the complainant in connivance with the police after lifting him from his house Shakurpur, Delhi. (59) According to accused Naeem @ Naimuddin he is innocent and has been falsely implicated in this case after lifting by the police from the Rohini court when he came to attend court date in another matter.
(60) According to accused Mohd. Azad Alam he is innocent and has been falsely implicated by the police officials and that he has nothing to do with the alleged incident.
(61) According to accused Mohd. Arif he is innocent. He has stated that the police officials namely Somdev, Pappu Lal and Ashok State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 53 of 92 Dabas used to demand money from him and when he refused, they have falsely implicated him in this case in connivance with the complainant. He states that previously they threatened him to falsely implicate in some criminal case. According to him he had also made complaints against these police officials in the year 2009 and 2010. (62) The accused have examined as many three witnesses in defnece. DW1 HC Ram Karan has deposed that on 4.2.2011 he was posted at Police Station Saraswati Vihar and at about 10:45 PM he received a telephonic message from Lady Ct. Kamlesh of PCR Omega 54 that 4 to 5 persons took away Rs. One Lac from the shop at WZ621 Gali No. 2, Rani Bagh, by showing knife to the victim. According to the witness, he reduced the said message into writing vide DD No. 76B which is Ex.PW15/A and handed over the same to SI Umesh Rana through Ct. Sanjeet for further proceeding. (63) DW2 Shiv Kumar is the neighbour of accused Arif and residing in the area for the last 2022 years. According to him on 18.2.2011 at about 6 PM when he was returning home from office, he met Jallaluddin Siddiqui the father of accused Arif in the gali who informed him that Arif was taken away by police to the police station on the pretext of some inquiry but thereafter he did not return back and hence he asked him (witness) to accompany him on which they both went to the police station and saw the Arif there but they were not allowed to meet him.
State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 54 of 92 (64) In his cross examination by Addl. PP, the witness has deposed that he is aware that if police detains somebody illegally, a complaint can be made to the senior officers. The witness has admitted that he did not made any such complaint to the any senior officers or authority or to the court. He has denied the suggestion that he has deposed falsely at the instance of the accused Arif having personal relations with his family only to save him from penal consequences.
(65) DW3 SI Devender Singh (wrongly mentioned as DW1) has deposed that on 4.2.2011 he was posted as Incharge Mobile Crime Team and on receipt of a call at about 11 PM from Control Room he reached the spot i.e. WZ621 Rani Bagh along with other staff where SI Umesh Rana along with his staff was already present along with complainant Amar Nath Gupta. The witness has further deposed that after inspecting the spot he has given his report which is Ex.DW1/DX1. He has deposed that the photographer Ct. Parvender had taken the photographs of the spot however no chance prints were detected during the course of inspection.
(66) In his cross examination by the Ld. Addl. PP for the State the witness has deposed that the chance prints could not be lifted as the entire scene of crime was disturbed and has voluntarily explained that finger prints of large number of persons were present in the room as he was told that labour was also there.
State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 55 of 92 FINDINGS:
(67) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsels. I have also considered the testimonies of various witnesses examined by the prosecution and memorandum of arguments filed on behalf of the accused. My findings are as under:
Ocular Evidence / Allegations against the accused: (68) It is settled proposition of law that the best evidence in any case is the ocular evidence. In the present case it is the complainant and his employees who are eye witnesses to the incident and they have all appeared before the court and supported their earlier versions given to the police and identified the accused. (69) The complainant Amar Nath Gupta (PW11) has in the court proved that at the time of incident three persons entered his shop along with arms i.e. two boys with knives and one with the pistol and after showing these arms to them they took away the cash amount from the box and ran away. He has proved that during the incident a stiff resistance was put up by him and his employees.
According to him, one of the assailants had put a knife on his back while the other assailants entered duly armed. The relevant portion of his statement is as under:
"...... I along with my family members along with my son Manoj Kumar Gupta am residing on the State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 56 of 92 aforesaid address at first floor. My son Manoj is having business of gutkatambaku. I also used to sit at the shop. On 4.2.2011 at about 10:45 PM. Again said, at about 9:45 PM, I was sitting on the counter of the shop and Shyam Bahadur and Vijay Bahadur who are my servants, were also present at the shop. Firstly one person entered our shop who was having a knife in his hand and covered his face with handkerchief and put the knife on my back and asked me to handover whatever I was having. At the same time another person entered at the shop who was having shawl around his body and was having knife. He attacked on Vijay Bahadur (Vijay Bahadur se ulajh gaya and there was a hatahapai between Vijay and that person). While first boy was keeping the knife on my back, my servant Shyam Bahadur had caught hold of that person and in this process Shyam Bahadur, that boy and myself fell on the ground. At the same time, the third boy entered the shop who was having a pistol in his left hand and took out the cash from the galla / cash box and ran towards outside. In this process, my servant Vijay Bahadur had lifted a chair and thrown the same on the back of those persons as a result of which some money had fallen on the ground. Finally those boys succeeded in running away from the spot. The knife which was put on my back and the shawl of the other person was dropped at the spot. Some public persons made a call at 100 number and police came to the spot and my statement was recorded by the police vide Ex.PW11/A bearing my signatures at point A. I handed over the knife and the shawl to the State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 57 of 92 police. The shawl was taken into possession by the IO vide memo Ex.PW11/B bearing my signatures at point A. The knife was taken into possession by the IO vide memo already Ex.PW7/B bearing my signatures at point C. At this stage, I cannot say whether I will be able to identify the accused or not. At this stage the witness has correctly pointed towards two accused sitting in the court whose names he is unable to tell. The court has observed that their names are Sarfaraz and Naeem. He has identified Naeem as the boy who had kept a knife on him and Sarfaraz as the boy who was having a shawl wrapped around him. The witness says that he cannot identify any other accused....."
(70) It is evident from the above that the complainant has in fact identified two of the assailants in the court i.e. accused Sarfaraz and Naeem by pointing out. He has also identified the knife which was dropped by the accused Naeem when the scuffle took place between Naeem and his employees.
(71) Coming now to the testimony of Vijay Bahadur (PW6), he is an employee of the complainant and has corroborated the testimony of Amar Nath Gupta (PW11) in material particulars. According to Vijay Bahadur, three boys had come inside the shop while one entered inside the shop carrying a knife followed by another boy who was having a shawl wrapped around him, the third boy followed by them with a pistol. He has corroborated the State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 58 of 92 testimony of the complainant to the extent that the first boy put the knife on Amar Nath Gupta; the second boy who had wrapped shawl around himself showed the knife to him (Vijay Bahadur) and Shyam Bahadur and when the third boy entered the shop with a pistol, they (victims) started raising alarm on which the shawl fell down at the spot. The relevant portion of his statement is as under:
"...... I am working at shop No. WZ621, Gali No.2, Shri Nagar, Rani Bagh for last ten years. The owner of the shop is Sh Amar Nath Gupta who is involved in the business of wholesale of Tobacco products. On 04.02.2011 I, Shyam Bahadur and Sh. Amar Nath Gupta were present at the shop. At about 9:45 PM three boys came to the shop. Initially one boy entered inside the shop, he was carrying a knife, he was followed by another boy who was having a shawl wrapped around himself and the third one followed him with a pistol. The first boy put the knife on Sh. Amar Nath Gupta, the second boy who was in a shawl showed the knife to me and Shyam Bahadur and when the third boy with the pistol entered, we started raising an alarm on which the shawl of the second boy slipped and fell down on which I could recognize him and I hit him with a chair kept in the shop. On this the said boys fled from the shop.
At this stage Ld. APP seeks permission to put leading question to the witness as he submits that the witness is not giving the complete details.
Heard. Permission granted.
The police had recorded my statement at the shop itself. It is correct that I had told the police that when the shawl of the person whom I had hit with State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 59 of 92 the chair fell some money he was carrying also fell down. It is correct that I had told the police in my statement that the person who was carrying a pistol had removed the money from the cash box. It is correct that I had told the police that four boys had come to the spot and out of these boys two boys were carrying knives one of whom had shown the knife to me and the other had shown the knife to Shyam Bahadur whereas the boy having the katta was standing outside and he was the one who came inside later and removed the money from the "gala".
Earlier I had stated that three persons had entered since I had forgotten the sequence as the fourth one was standing outside. I had told the police that two of these boys had covered their faces with handkerchief whereas two of the boys have their faces exposed. I had identified one of the accused in the Tihar Jail. At this stage the witness has identified his signatures on TIP proceedings of accused Sehjad which is EX PX6 at point A. I can identify the boys who had come to the shop.
At this stage witness has correctly identified all the accused persons who were present in the court today in judicial custody. Witness has correctly identified the accused Naim (who is present in the pink shirt in the court today), accused Aarif (who is present in grey check shirt in the court today), accused Sarfaraz (who is present in white shirt in the court today) and accused Sehjad (who is present in the white shirt in the court today) by pointing out towards them. The witness has stated that it was the accused Naim who came first followed by Aarif and Sarfaraz whereas Sehjad stood outside State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 60 of 92 and entered later. He has also identified the accused Naim and Aarif as the boys who were carrying a knife and states that he is slightly confused as to who was carrying a pistol whether Sarfaraz or Sehjad as the entire incident took place in a quick succession. (72) It is evident from the above that he has supported the prosecution case with regard to the incident and has admitted having told the police that four boys had come to the spot out of which two boys were carrying knives one of whom showed the knife to him and the other one had showed the knife to Shyam Bahadur whereas the boy who was having a katta came inside and removed the money from the gala / cash box while another boy remained standing outside the shop keeping a watch. He has also clarified that two boys had covered their faces with handkerchief. According to him during the Judicial Test Identification Parade proceedings which is Ex.PX6, he had correctly identified the accused Shahzad. Further, in the court, this witness has not only identified the accused Shahzad but also identified the accused Naeem, Sarfaraz and Arif. According to him, it was Naeem who came with the knife followed by Arif who was also carrying a knife and then it was Sarfaraz who was carrying a katta. The witness has explained that he is slightly confused as to who was carrying the pistol if it was Sarfaraz or Shahzad as the entire incident lasted in quick succession. Here, I may observe that the testimony of this witness is authentic and credible and finds due State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 61 of 92 corroboration from the visuals of the CCTV footage. (73) Similarly, Shyam Bahadur (PW10) another employee of the complainant Amar Nath Gupta, has also corroborated the testimony of both Vijay Bahadur (PW6) and Amar Nath Gupta (PW11). It is Shyam Bahadur who has confirmed that there were five persons who were involved in the incident out of whom one put the knife on the back of Amar Nath and asked him to handover whatever he had and while he (Shyam Bahadur) tried to apprehend that person, the second person entered the shop carrying a knife and having a shawl wrapped on his body and he caught hold of the other employee i.e. Vijay Bahadur and in the mean time the third boy entered the shop who was having a katta in his hand and he took out the money from the galla / money box. He has explained that the remaining two persons remained standing near the counter. The relevant portions of his testimony is as under:
"....... I am working at the shop of Sh. Amar Nath Gupta, at WZ621, Gali No. 2, Shri Nagar, Delhi. Sh. Amar Nath Gupta was having business of bidi tambaku. On 4.2.2011, I along with uncle Amarnath and Vijay Bahadur were present at the shop of Sh. Amar Nath. Suddenly five persons entered the shop. Firstly one person entered the shop with a knife and put the knife on the back of Sh. Amar Nath and asked him to handover whatever he was having. I had tried to apprehend that person, at the same time other another person came in the shop along with the knife.
He was having shawl wrapped on his body. That State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 62 of 92 person caught Vijay. I made the first person lie on the ground. At the same time third person also entered int the shop who was having a katta in his hand and he took out the money from the galla / money box.
Remaining two persons remained standing near the counter. Vijay had thrown a chair towards those persons as a result some money had fallen on the ground and thereafter all the five persons ran away from the spot. I lifted the money which had fallen on the ground and handed over to Sh. Amar Nath. While they were running from the spot, the knife and one shawl left on the shop. I had identified those persons three times, first on the shop, second time in the PS and third time in the court. The aforesaid incident took place at about 9:45 PM. I can identity the accused persons if shown to me.
At this stage, the witness has seen towards all the five accused persons and identified them by pointing out towards them......"
(74) It is evident from the aforesaid that not only has Shyam Bahadur identified all the five persons but he has also corroborated the testimonies of Amar Nath and Vijay Bahadur in material particulars relating to the sequence of events which took place. He has explained that it was Vijay Bahadur threw a chair towards those boys on account of which some money fell down on the ground and thereafter all the five assailants ran away from the spot and while running one of the knives and the shawl had dropped at the spot. According to him, he (witness) thereafter picked up the money which State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 63 of 92 fell on the ground and handed over the same to Amar Nath Gupta. Shyam Bahadur has also explained that he had seen those boys three times, first at the shop, second time in the police station third time in the court. Witness Shyam Bahadur has identified all the five accused in the court as the assailants by pointing towards them and I find his testimony to be authentic and credible finding due corroboration from the visuals of the CCTV footage.
(75) Ld. Defence Counsel has also raised an argument that the CCTV footage have been fabricated and doctored. It has been specifically explained by PW5 Manoj that the CCTV camera has a memory of two days. The date and time of the footage finding clearly reflected in the footage, it is difficult to believe that the entire incident could be stagemanaged. The CCTV footages having handed over to the Investigating Officer by Manoj (PW5) after few hours of the incident after converting the same into CD which is Ex.PX1 removes all doubts of its having been fabricated. Merely because another CD which is Ex.PX2 was handed over to the Investigating Officer after a week of the incident, would not make much difference, particularly so because the presence of two persons i.e. Sarfaraz and Shahzad stand reflected in both the CDs. In fact PW13 Nikhil Paul who is the Editor at Laxmi Digital Studio, Pitampura, has proved that on 5.2.2011 he had taken the footage photographs from the CD and handed over the same to the investigating officer and has State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 64 of 92 denied that the photographs have been doctored and manipulated with the help of a software. It is the accused persons who have alleged that the CDs have been doctored and it was open for the accused to have proved the same, which is not done. (76) It is also argued that the accused have been falsely implicated in this case after lifting from house and that none of the accused could be connected with the offence as no chance prints have been lifted from the scene of crime. In this regard the accused have examined SI Devender Singh (DW3 wrongly mentioned as DW1) who is the member of the Mobile Crime Team. I may observe that SI Devender Singh has clearly explained that the scene of crime had been disturbed and it was due to this reason that no chance prints could be lifted. Further, the CCTV footage shows that the accused have hardly put their hands on anything and it was only Sarfaraz who put his hand on the cash box. Further, large number of customers were coming and going in the shop and hence the scene of crime having been disturbed, no chance prints could have been possibly lifted.
(77) In so far as the case of the accused that they were forcibly lifted from their houses and have been wrongly shown at some other place as stated by Shiv Kumar (DW2), I may observe that Shiv Kumar is an interested witness being previously known to the accused Arif and the possibility of the father of Arif saying so to save State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 65 of 92 his son from penal consequences cannot be ruled out. Arif is clearly visible in the CCTV footage and assuming that he was lifted from the different place, I may observe that merely because there was some procedural lapses committed by the police, benefit of the same cannot be given to the accused once the substantive offence against the accused stands conclusively established (Ref.: Rabinder Kumar Pal @ Dara Singh Vs. Republic of India reported in AIR 2011 SC 1436).
(78) All the three eye witnesses i.e. Amar Nath, Shyam Bahadur and Vijay Bahadur have been cross examined at length and I find their testimonies reliable and trustworthy not only because they corroborate each other on material particulars but their testimonies find due corroboration from the CCTV Footage of the entire incident clearly reflecting not only the presence of the accused at the spot but also the use of dangerous arms in the incident. The contradictions appearing in the testimony of the eye witnesses with regard to the number of persons involved in the incident can be explained being a matter of difference in perception. However, the CCTV Footage clinches the entire issue and puts at rest all controversies. It has already come on record that there were four CCTV cameras installed in the shop i.e one on the entrance, one on the backside while two were installed in the godown. The CCTV footages of all the cameras have been placed on record which not only confirm the entire State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 66 of 92 incident but the visuals clearly establish the identity of the accused persons, use of arms, dropping of a shawl by one of the assailants, taking away money from cash box and dropping of some money / knife while running away. This being the background, I hold that the ocular evidence confirms the presence and involvement of all the accused in the commission of the offence. Hence, under the given circumstances, I hold that the identity of all the five accused persons and the incident in question i.e. armed dacoity (there being five persons conjointly involved in the incident) stands established and proved beyond reasonable doubt.
Presence of accused Mohd. Azad Alam at the spot at the time of incident stands established:
(79) All the accused persons are clearly visible in the CCTV footage except the accused Mohd. Azad Alam whose face is not clearly visible. However, from the CCTV footage there is glimpse of him at 21:57:01 in both Camera No.1 and Camera No.2 when he is seen running away along with the coaccused Shahzad after the incident (Ex.PX1). I have observed him in the court. His physical appearance is to be matching with that of the person reflected in the Camera. The eye witness i.e. Shyam Bahadur (PW10) having identified him both at the time of his production in the Court of Ld. Illika Magistrate on 28.2.2011 after the refusal of accused Mohd. State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 67 of 92
Azad Alam to participate in the Judicial Test Identification Parade and thereafter in the Court, leaves little doubt and I hereby hold that his present at the spot as the boy who was standing on the road outside the shop and keeping a watch stands conclusively established. Handing Over of the CCTV Footage to the Police:
(80) The case of the prosecution is that the place of incident is premises bearing No. WZ62, Ground Floor, Gali No. 2, Sri Nagar, Delhi, with a shop on ground floor and godown on back portion where four CCTV cameras have been installed i.e two at the shop and two at the godown. The complainant Amar Nath Gupta has stated that previously also there was a robbery in his shop and thereafter on the advice of the police, these CCTV cameras were installed by him.
(81) This case proves that how the modern technology (i.e. CCTV cameras) comes to the aid of citizens in terms of their safety and security and also assists the Investigating Agency by providing electronic records which are authentic and credible. The Investigating Officer has proved that when he reached the spot he saw the CCTV cameras installed when he immediately directed the victim to preserve the CCTV footages. The son of the complainant namely Manoj (PW5) has proved that the CCTV cameras installed in their shop have a memory of two days. Manoj has proved that the State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 68 of 92 CCTV footage of the date of incident i.e. 4.2.2011 were handed over by him to the police on 5.2.2011 (i.e. on next day of the incident).
Manoj has also proved that he handed over to the police the footage of the cameras of two hours prior to the incident when two of the assailants ie. Sarfaraz and Sehzad come for recce to the shop. He has proved that the photographs of these CCTV footages are Ex.PW5/A1 to Ex.PW5/A9, CD handed over by him to the police on 5.2.2011 is Ex.PX1 and the CD handed over by him to the police on 12.2.2011 is Ex.PX2.
(82) During the course of proceedings, the court has observed while playing the CDs the faces of two accused were covered with small handkerchiefs till the nose but for their features and profile were clearly visible. The said visuals confirm that the first boy who had entered the shop was Naeem who had entered the shop after covering his face with a small handkerchief despite which he was unable to hide his identity completely and when the said visuals were compared with the profile of the accused it was clearly evident to the Court that the boy who had first entered was in fact Naeem (who has also been identified by all the three eye witnesses). Further, in respect of the accused Shahzad and Arif there is no dispute. They had not covered their face and are clearly visible (shawl of Arif had fallen off during the scuffle which took place in the shop on account of which his face was uncovered). In so far as the Shahzad is State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 69 of 92 concerned he is the one had even come to the shop along with Sarfaraz in open face to conduct a recce of the shop. They are both visible in the earlier footage of 19:33 PM which is Ex.PX1. It is this Sarfaraz who had again come to the shop along with Naeem and Arif and was the third boy who was carrying a firearm in his hand and had collected the cash from the counter and showed the firearm to the victims while leaving.
(83) After the CD of the CCTV footage of Camera 1 and Camera 2 taken at 7:33 PM which is Ex.PX1 was played in the Court it has been observed by me and also stands confirmed that it was Sarfaraz and Shahzad who had come to the shop of the victim on the pretext of making purchases and had even interacted with the employees for sometime. The remained there from 19:33:52 till 19:37:54 and it is evident that there was sufficient time for the victims to have seen them and remembered their faces. Thereafter when the CCTV footage of the same cameras i.e. Camera 1 and Camera 2 taken at 9:54 PM which is Ex.P2 was seen it stood established that the same boy Sarfaraz was the one who had gone inside the shop with a katta in his hand along with two other boys at 21:54:42 after covering his face with handkerchief but he can easily be identified on the basis of the clothes which he was wearing in both the footages i.e. Ex.PX1 and Ex.PX2 and I may observe that even State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 70 of 92 after he had covered his face with a handkerchief he has not been able to hide himself properly and could be easily identified. (84) The CDs have been watched by me carefully and I find the same to be authentic and there are hardly any chances of their being doctored. There is no reason that the CDs could have been doctored to implicate the accused persons there being no history of any enmity between the complainant and the accused. The action packed incident had lasted only 21 seconds and is clearly visible and there is a little for the court to doubt the same. Manoj (PW5) has explained that the CCTV cameras are still fitted at the same place as it were fitted at the time of incident. The footages of cameras installed both in the shop and godown also shows a lady who was present on the backside godown and is also visible after the incident when she came running towards the front portion of the shop. It has come in evidence that she was the daughter in law of Amar Nath who is having his residence on the first floor and she had come running to the front portion i.e. to the shop in question (she is visible in the CCTV footage both at the front side and at the back side portion of the premises).
Number of Persons Involved in the Incident:
(85) The case of the prosecution is that five persons were involved in the incident of armed dacoity and in this regard the State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 71 of 92 prosecution not only seeks to place its reliance upon the testimony of the eye witness Shyam Bahadur (PW10) but also upon the CCTV footages confirming the presence of five persons i.e. three actually involved in the commission of robbery inside the shop and two keeping a watch one on the counter of the shop and the other on the road in front of the shop. Here I may observe that the entire incident is not just the actual incident which took place at 9:56 PM but comprises of an earlier incident of 7:33 PM when two of the members of this gang had come to the shop and done a recce. Their presence is reflected in the CCTV Footage of 7:33 PM showing that two of these boys had come to the shop on the pretext of making some small purchases. They remained there for almost around four minutes and observed the spot and even interacted with the employees before returning at 9:56 PM to commit the incident. No doubt, the eye witnesses were in a position to identify them very cleanly.
(86) Coming now to the CCTV footages, I may observe that they confirm the presence of five persons as evident from the CD Ex.PX1 at about 21:56:42 to 21:57:03 taken from CH1 and CH2.
The said footage confirms the presence of four persons along with detail description, features and identity and there can be no reason to doubt that it was the accused Sarfaraz who entered the shop and the accused Shahzad who kept a watch outside the shop. The presence State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 72 of 92 of the 5th boy is evident as he was standing on the road and he along with Shahzad was first who ran away from the spot together but his face is not clearly visible. In so far as Shahzad is concerned, there can be no dispute because he is the same person who along with Sarfaraz (in blue shirt and jeans) had first came to the shop at 19:33:52 (presence shown in the CCTV footage Ex.PX1) on the pretext of making some purchase from the shop where they remained till almost four minutes. They had initially come to the spot at about 19:33 to observe the spot where the later on committed the crime and the CCTV footages Ex.PX1 confirming that Sarfaraz wearing blue shirt and blue pant and Shahzad wearing sweater type shirt, had come to the shop on the pretext of making purchase and communicated with the staff and also with the customers from 19:33:52 to 19:37:54 and also made purchase and gave money and accepted back the remaining cash amount and thereafter returned at 21:56:42 to commit the incident.
(87) The person who had a face covered with the shawl is also visible because the shawl came out and in the footage his face is clearly visible (i.e. the accused Arif). The only dispute which remained is with regard with the fourth boy with katta i.e. Sarfaraz because he had covered his face with handkerchief at that time. The CCTV footage from 19:33:52 to 19:37:54 shows that it was Sarfaraz State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 73 of 92 who had shown the face at that time he was recognized from the clothes which he was wearing. The CCTV footage of CH1 and CH2 (Ex.PX1) confirms the identity of Shahzad, Sarfaraz and Naeem and it was Sarfaraz who had covered his face with handkerchief who entered the shop as the third boy carrying katta at the time of incident. The identity of the person who had come with Shahzad with uncovered face at 19:33:52 confirming that this 3rd person entering with the katta.
(88) In so far as the 5th accused is concerned, his presence along with Shahzad who was keeping a watch outside the counter is reflected because while the incident was taking place inside the shop, Shahzad apparently panicked and it was he who along with the 5 th boy who was outside in the road but later ran away from the spot first as reflected in the CCTV footage at 21:57:00. The legs of the fifth boy are visible in the footages of the CCTV cameras i.e. Camera No. 1 and Camera No.2 installed outside. The entire incident lasted for hardly less than 21 seconds as reflected from the CCTV footage Ex.PX2. The demeanor of the 5th boy as reflected in the CCTV footage shows that he was not an innocent passerbye (neither it is the case of the accused) but was certainly involved with the accused who participated in the incident or else there was no reason for him to have panicked and run away along with Shahzad after the incident. It is this which establishes that there were five persons who were State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 74 of 92 involved in the armed robbery and that the incident is not a robbery and satisfies the ingredients of Section 395 Indian Penal Code. Use of Dangerous Arms / Fire Arms in the Incident:
(89) The case of the prosecution is that an armed dacoity had taken place wherein five persons were involved out of which three were armed with knives and one with a country made pistol. While running away from the spot the knife of one of the assailants had fallen down which was handed over to the police by the victims. (90) All the three eye witnesses have corroborated each other on all the material aspects. They have proved that two boys who had initially entered the shop one after the other, were armed with knives and it was the third boy who was having a pistol who took the money from the cash box. While running from the spot, one of the knife and the shawl of the assailants were dropped at the spot which were later on picked up by the victims and handed over to the police. The said knife and shawl have been correctly identified by the victims in the court (shawl is also reflected in the CCTV Footage). (91) The testimony of all above three eye witnesses stands corroborated from the CCTV footages which confirms that two of the assailants were carrying knives one of whom put the knife on the back of Amar Nath Gupta. Further, in the footage the other boy is also shown using the knife and fortunately Amar Nath Gupta was State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 75 of 92 saved by his employees who offered resistance an aspect clearly visible in the CCTV footage. The third boy who had entered the shop with the pistol had also shown the pistol to the victims an aspect which is again clearly reflected in the CCTV footage and it was this boy who removed the cash from the cash box after showing the katta to the victims to prevent them to follow him.
(92) The knife left by one of the assailants which was later on handed over by the victims to the police, has been identified by complainant Amar Nath Gupta as Ex.P1 in the court. This being the background, I hold that the oral testimonies of the eye witnesses find independent corroboration from the CCTV footages which confirms the use of knives and fire arm in the incident by atleast three of the assailants who entered inside the shop.
(93) The CCTV footage's conclusively confirms and establishes the use of knife by the first boy who had entered the shop i.e. Naeem (whose features are clearly visible and found matching) and also by the second boy who was in a pink shirt with his face covered with a shawl (which shawl had fallen down during the incident) i.e. accused Arif whose face was clearly visible. Further, the use of knives by accused Naeem and Arif and of katta by accused Sarfarz stands confirmed from the CCTV footage. In fact the accused Arif is the one who had a knife in his hand with his face covered with a shawl, has been clearly shown to be stabbing the State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 76 of 92 victims with the same (incidentally the victims did not receive any injury since one of the other assailants had fallen down and on account of the supervening circumstances as the employees had put a stiff resistance and the articles kept in the shop had fallen down on the victims as well as the accused which is clearly reflecting in the CCTV footage). The use of knives by accused Naeem and Arif and of katta by the accused Sarfaraz during the incident stands conclusively established. Further, the recovery of the katta from the possession of Sarfaraz during the investigations which has been confirmed to be a firearm as defined under the Arms Act also stands established thereby making the accused Sarfarz liable for the offence under Section 25 of Arms Act.
Forensic Evidence:
(94) Sh. K. C. Varshney (PW9) has confirmed that the country made pistol of .315" bore which was recovered from the accused Sarfaraz is a fire arm as defined in the Arms Act which report is Ex.PW9/A. He has proved that the firing pin of the said country made pistol was absent and it was not in working order and required repair to bring it into the working order. This evidence will not make any difference to the prosecution case since the use of the katta in the incident by the accused Sarfarj in the incident stands conclusively established not only from the eye witness account but State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 77 of 92 also from the CCTV Footage which confirms the same. It is a matter of common knowledge that the country made pistols which are being used by the local criminals can hardly be used once or at the most on two occasions and it is difficult to reuse it thereafter. The presence of the pistol being established in the CCTV footage and the pistol Ex.P3 in the hand of Sarfaraz and the case of the prosecution being that the same was got recovered at the instance of the accused Sarfaraz, I hold that the forensic evidence proving the same to be firearm is incriminating qua the accused Sarfaraz.
Discrepancies in the Statements of Witnesses:
(95) The case of the prosecution is that five persons were involved in the incident whereas the Ld. Defence Counsel has pointed out that there are material discrepancies in the testimonies of the eye witness since Vijay Bahadur (PW6) has specifically stated that three persons entered the shop whereas the complainant Amar Nath Gupta (PW11) has identified two claiming that four persons were involved. It is only Shyam Bahadur (PW10) who has identified all the five persons as assailants. Ld. Defence Counel has pointed out that the CCTV cameras clearly reflect the presence of four persons and presence of fifth one is doubtful for which benefit of doubt be given to the accused Mohd Azad Alam. Ld. Counsel has further pointed out that the eye witnesses are not consistent and there State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 78 of 92 are material contradictions with regard to the number of persons involved in the incident who came to the shop first, who was using what weapon and the sequence in which the evidence took place. (96) I have considered the rival contentions. In the case of State of H.P. Vs. Lekhraj and another reported in JT 1999 (9) SC 43 it was observed by the Supreme Court of India as that: ".....In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.........
.......The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial."
(97) Further, in the case of Surender Singh v. State of Haryana reported in JT 2006 (1) SC 645, the Hon'ble Supreme Court of India has observed as under : "..... It is wellestablished principle of law that every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity...." State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 79 of 92 (98) As far as minor inconsistencies are concerned in the statement of the witnesses it is held in Ousu Varghese v. State of Kerala, reported in (1974) 3 SCC 767 that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In the case of Jagdish v.State of Madhya Pradesh reported in AIR 1981 SC 1167, the Supreme Court has held that When the discrepancies were comparatively of minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. Also in the case of State of Rajasthan Vs. Kalki, reported in (1981) 2 SCC 752 it has been held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person. (99) Even otherwise, when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully made his testimony totally nondiscrepant. Courts should bear in mind that it is only when discrepancies in evidence of State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 80 of 92 witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
(100) The Hon'ble Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. In the judgment of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1), the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses.
(a) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(b) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(c) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 81 of 92 unnoticed on the part of another.
(d) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(e) In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
(f) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(g) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing crossexamination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.
State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 82 of 92 (101) Applying the above settled principles of law to the facts of present case, I hereby dismiss the arguments advanced by the Ld. Defence Counsel and I hold that the CCTV footage conclusively clinches the entire issue and the objections so raised with regard to the contradictions in the oral testimony of various witnesses. Here I may observe that the incident having taken place suddenly, had shocked the witnesses as they could not contemplated as what was happening and under the given circumstances the witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(102) Further, with regard to the contradictions in the testimonies of Amar Nath, Shyam Bahadur and Vijay Bahadur with regard to the sequence of events which took place in rapid succession, ordinarily the incident being unexpected and the sequence of events having taken place in a rapid succession in a short span of time, it is natural for the witnesses to have mixed up or confused when crossexamined on the same later on. (103) Also, with regard to the discrepancies as pointed out by the Ld. Defence Counsels in the testimonies of the eye witnesses are concerned, again as held by the Hon'ble Supreme Court in the case of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat (Supra) the same can be attributed to difference in perception and observation State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 83 of 92 which may vary from one person to another. While one person (Amar Nath Gupta) could noticed three persons inside the shop, Shyam Bahadur observed two persons standing outside keeping a watch because one of those persons i.e. Shahzad had even come earlier (two hours earlier) on the pretext of making some purchases. What Shyam Bahadur has noticed, perhaps might have gone unnoticed by Amar Nath Gupta or Vijay Bahadur and what object or movement was embossed in the mind of Shyam Bahadur, might have gone unnoticed by the others and as per his own version Amar Nath had become perplexed at that time.
(104) It is evident from the CCTV footage that at the time of the incident different eye witnesses were present at different places of the shop hence their power of observation would differ. Hence, under the given circumstances and going by the visuals of the footages of CCTV cameras, I find no reason to disbelieve the testimonies of the eye witnesses. I hold that the contradictions and discrepancies are too immaterial and irrelevant. The evidence of the eye witnesses / victims regarding the commission of crime is most important. I do not find any force in the submission of the counsel for throwing out the case of the prosecution merely on the ground of certain discrepancies / contradictions in the deposition of various prosecution witnesses. I am of the considered view that such discrepancies are bound to occur in the deposition of various State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 84 of 92 witnesses being usual and natural and even otherwise as they are found to be formal in nature without striking at the root of the matter and the same cannot be treated as fatal for the prosecution. FINAL CONCLUSION:
(105) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 85 of 92 (106) Applying the above principles of law to the facts of present case, it is evident that the investigations conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the investigating officer. On the basis of testimonies of the various witnesses examined by the prosecution, the following facts stand established:
➢ That Amar Nath Gupta along with his son Manoj Kumar Gupta are having the business of wholesale of Tobacco products at WZ621, Gali No.2, Shri Nagar, Rani Bagh. ➢ That Shyam Bahadur and Vijay Bahadur are working on the said shop of Amar Nath Gupta.
➢ That four CCTV Cameras are installed in the shop out of which Camera 1 and 2 i.e. CH1 & CH2 are installed in the shop in the front portion of the building where the sale / purchase work is done. The camera 3 and 4 i.e. CH3 & CH4 are installed on the back portion of the building which is used as godown / store house.
➢ That on 4.2.2011 between 7:33 PM to 7:37 PM the accused Sarfaraz and Shahzad came to the shop of complainant Amar Nath Gupta and on the pretext of making purchases they conducted recce, observed the spot for some time and thereafter returned.
State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 86 of 92 ➢ That at about 9:45 PM the accused Sarfaraz and Shahzad returned along with Mohd. Azad Alam, Naeem @ Naimuddin and Mohd. Arif and committed dacoity.
➢ That first the accused Naeem entered the shop with his face covered with a small handkerchief (despite which he was unable to hide himself properly and can be identified) and a knife in his hand which he had put on the back of Amar Nath Gupta.
➢ That in the meanwhile the accused Arif entered the shop with a shawl wrapped around his face with a knife in his hand and inflicted knife blows on Amar Nath Gupta who was providentially saved on account of intervention of his employees who put up a stiff resistance.
➢ That during the scuffle the shawl of accused Arif fell down which was lifted by the police later.
➢ That due to stiff resistance put forth by Vijay Bahadur and Shyam Bahadur, the accused ran away from the shop and while running away the knife / money which the accused had looted, fell down.
➢ That the accused Sarfaraz entered the shop after having covered his face with a small handkerchief (despite which he was unable to hide himself properly and can be identified) and a country made pistol in his hand which he menacingly State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 87 of 92 showed to the victims and removed the money from the galla / cash box and ran away.
➢ That during this period the accused Shahzad and Mohd. Azad Alam remained out side the shop and where keeping a watch. ➢ That thereafter a PCR call was made pursuant to which the police reached the spot and lifted the knife and shawl from the spot of the incident.
➢ That on the basis of statement of Amar Nath Gupta the present case was got registered.
➢ That all the CCTV Cameras i.e. CH1, CH2, CH3 & CH4 have similar time settings (showing identical readings at a given point of time) and have a memory of two days and the Investigating Officer obtained the CCTV footage of the said four cameras of the relevant period.
➢ That on 13.02.2011 pursuant to a secret information the accused Shahzad was apprehended from House No. WZ 323, Village Shakurpur, Delhi and on his pointing out the accused Md. Azad Alam was also apprehended.
➢ That on 18.02.2011 pursuant to a secret information the accused Md. Arif was apprehended from House No. M7, Sample quarters, JJ Colony, Shakur Pur.
➢ That on 21.02.2011 the accused Naeem @ Naimuddin was apprehended from near Kabristan, JJ Colony, H Block, Shakur State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 88 of 92 Pur, Delhi pursuant to a secret information.
➢ That on 05.03.2011 an information was received from Police Station Moti Nagar about the arrest of the accused Sarfaraz after which the accused Sarfaraz was arrested in the present case.
➢ That on 17.03.2011 pursuant to the disclosure and pointing out of accused Sarfraz @ Sonu a country made pistol was recovered from his rented accommodation at WZ48, Village Shakur Pur, Delhi.
➢ That during the Test Identification Parade proceedings Shyam Bahadur and Vijay Bahadur correctly identified accused Sahzad.
➢ That the accused persons Mohd. Azad Alam, Mohd. Arif, Naeem and Sharfarz refused to take part in the TIP Proceedings.
➢ That on 28.2.2011 pursuant to refusal of Mohd. Azad Alam to participate in the TIP Proceedings the witness Shyam Bahadur identified him outside the Court during his production in the Court of Ld. Illaka Magistrate.
➢ That on 14.3.2011 pursuant to refusal to Mohd. Arif and Naeem to participate in the TIP Proceedings the witness Shyam Bahadur identified them outside the Court during their production in the Court of Ld. Illaka Magistrate. State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 89 of 92 (107) The Identity of all five accused namely Mohd. Azad Alam, Shahzad, Naeem @ Naimuddin, Mohd. Arif and Sarfaraz @ Sonu stands established and proved. All the five accused have been correctly identified by the eye witnesses and the entire incident of dacoity has been captured in the CCTV (visuals prove the same) stands established. The oral testimonies of the eye witnesses find independent corroboration from the CCTV footages which confirms the use of knives and fire arm in the incident.
(108) There are two stages in criminal prosecution. The first obviously is commission of the crime and the second is investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. (109) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 90 of 92 and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by circumstantial evidence and the witness of the prosecution have been able to built up a continuous link. Though the Ld. Defence counsels have raised many issues regarding the manner in which the accused are shown to have been arrested and apprehended and the recovery of the arms affected from them, I hold that merely because there were some procedural lapses committed by the police, benefit of the same cannot be given to the accused once the substantive offence against the accused stands conclusively established (Ref.: Rabinder Kumar Pal @ Dara Singh Vs. Republic of India reported in AIR 2011 SC 1436). (110) It stands established that in the incident which had taken place all the five accused had participated out of which three were armed with deadly weapons i.e. accused Naeem and Arif were armed with knives and the accused Sarfaraz was having a country made pistol in his hand and that the accused Arif had inflicted knife blows on Amar Nath but it was by sheer providence & luck and by presence of mind shown by the employees Shyam Bahadur and Vijay Bahadur that Amar Nath Gupta did not receive any injuries. In view of the above, I hold the accused Naeem @ Naimuddin, Mohd. Arif and Sarfaraz @ Sonu guilty for the offence under Section 395 r/w Section 397 Indian Penal Code. Further, the accused Sarfarz @ Sonu is also held guilty for the offence under Section 25 Arms Act. State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 91 of 92
In so far as the accused Mohd. Azad Alam and Shahzad are concerned they are held guilty only for the offence under Section 395 Indian Penal Code.
(111) Be listed for arguments on sentence on 20.2.2013.
Announced in the open Court (Dr. KAMINI LAU) Dated: 16.02.2013 ASJ (NW)II: ROHINI State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 92 of 92 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Sessions Case No. 81/2011 Unique Case ID: 02404R0138272011 State Vs. 1. Mohd. Azad Alam S/o Mohd. Nazir, R/o WZ323 Vil. Shakurpur, Delhi. (Convicted) 2. Shahzad S/o Mohd. NasiurRehman R/o WZ323 Vil. Shakurpur, Delhi. (Convicted) 3. Sarfaraz @ Sonu S/o Abdul Ahad, R/o WZ323 Vil. Shakurpur, Delhi. (Convicted) 4. Naeem @ Naimuddin S/o Shamimuddin, R/o H221, JJ Colony, Shakurpur, Delhi. (Convicted) 5. Mohd. Arif S/o Jalaludin Siddiqui, R/o M7, Sample Quarters, JJ Colony, Shakurpur, Delhi. (Convicted) State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 93 of 92 FIR No. : 36/2011 Police Station : Saraswati Vihar Under Section : 397/395/34 Indian Penal Code Date of Conviction: 16.02.2013 Arguments concluded on: 26.3.2013 Date of Sentence: 28.2.2013 APPEARANCE: Present: Sh. Sukhbeer Singh, Addl. Public Prosecutor for the State.
Convict Arif in Judicial Custody with Sh. Rajat Sharma Advocate.
Convicts Mohd. Azad Alam, Shahzad, Sarfaraz and Naeem are in Judicial Custody with Sh. Kailash Madhukar Advocate/ Amicus Curiae.
ORDER ON SENTENCE:
On 4.2.2011 at about 9:45 PM a dacoity took place at WZ62, Ground Floor, Gali No. 2, Sri Nagar, Delhi a shop run by Amar Nath Gupta a wholesale dealer of tobacco products. At the time of the incident he was present in his shop along with his employees Shyam Bahadur and Vijay Bahadur when at about 9:45 PM three boys duly armed with knives and country made pistol entered into his shop while two boys remained on a watch outside. State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 94 of 92 The first boy who entered the shop had his face covered with a handkerchief. He was carrying a knife in his hand which he kept on the back of Amar Nath Gupta. While the second boy with his face wrapped with a shawl also entered the shop with a knife with which he started to attack Amar Nath Gupta. The employees Vijay Bahadur and Shyam Bahadur put up a stiff resistance and grappled with the said persons when in the meanwhile the third boy entered the shop with a country made pistol / desi katta in his hand and showed the same to the victims after which he went to the counter and removed the cash and thereafter all the three assailants along with two who were standing outside ran away from the spot. While the assailants were running away the shawl, knife and some of the cash which the said persons had looted fell on the ground. The entire incident lasted for 21 seconds and was captured in the two CCTV Cameras installed in the shop. It is these visuals retrieved from the said CCTV cameras and oral testimonies of the victims / eye witnesses (i.e. Amar Nath, Vijay Bahadur and Shyam Bahadur) which confirmed the identity of the accused at the time of the incident and which also sealed the fate of all the five accused before this Court.
This is one such case where the modern electronic gadgets have come to the aid and assistance not only to the victims but also of the Investigating Agency. With the help of the visuals captured by the CCTV footage that the accused could be immediately identified, State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 95 of 92 the accused Naeem and Mohd. Arif being the Bad Character of the area and Sarfaraz also having a criminal record in the area. On the basis of the secret information the accused have been apprehended and arrested and during the trial the eye witnesses have duly identified all the accused and also supported the case of the prosecution.
This Court vide its judgment dated 16.2.2013 held the accused Naeem @ Naimuddin, Mohd. Arif and Sarfaraz @ Sonu guilty for the offence under Section 395 r/w Section 397 Indian Penal Code. Further, the accused Sarfarz @ Sonu has been held guilty for the offence under Section 25 Arms Act. In so far as the accused Mohd. Azad Alam and Shahzad are concerned they have been held guilty for the offence under Section 395 Indian Penal Code.
It has been observed that the prosecution has able to successfully establish that Amar Nath Gupta along with his son Manoj Kumar Gupta were having the business of wholesale of Tobacco products at WZ621, Gali No.2, Shri Nagar, Rani Bagh; that Shyam Bahadur and Vijay Bahadur were employed in the said shop of Amar Nath Gupta; that four CCTV Cameras are installed in the shop out of which Camera 1 and 2 i.e. CH1 & CH2 are installed in the shop in the front portion of the building where the sale / purchase work is done and the camera 3 and 4 i.e. CH3 & CH4 are installed State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 96 of 92 on the back portion of the building which is used as godown / store house.
It was also observed by the Court that it stood established that that on 4.2.2011 between 7:33 PM to 7:37 PM the accused Sarfaraz and Shahzad came to the shop of complainant Amar Nath Gupta and on the pretext of making purchases they conducted recce (observation of the spot for some time) and thereafter returned; that at about 9:45 PM the accused Sarfaraz and Shahzad returned along with Mohd. Azad Alam, Naeem @ Naimuddin and Mohd. Arif and committed dacoity; that first the accused Naeem entered the shop with his face covered with a small handkerchief (despite which he was unable to hide himself properly and could be identified) and a knife in his hand which he had put on the back of Amar Nath Gupta; that in the meanwhile the accused Arif entered the shop with a shawl wrapped around his face with a knife in his hand and inflicted knife blows on Amar Nath Gupta who had a providential escape on account of intervention of his employees who put up a stiff resistance; that during the scuffle the shawl of accused Arif fell down which was lifted by the police later; that due to stiff resistance put forth by Vijay Bahadur and Shyam Bahadur, the accused ran away from the shop and while running away the knife / money which the accused had looted, fell down; that the accused Sarfaraz entered the shop after having covered his face with a small handkerchief (despite State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 97 of 92 which he was unable to hide himself properly and could be identified) and with a country made pistol in his hand which he menacingly showed to the victims, he removed the money from the galla / cash box and ran away. It has also been established that during this period the accused Shahzad and Mohd. Azad Alam remained out side the shop and were keeping a watch; that thereafter a PCR call was made pursuant to which the police reached the spot and took into possession the knife and shawl left behind by the accused.
This Court also observe that the prosecution has been able to successfully establish that the visuals retrieved from the CCTV footage were authentic and reliable and all the cameras i.e. CH1, CH2, CH3 & CH4 have similar time settings and have a memory of two days. The eye witnesses / victims and the visuals confirmed the involvement of all the five accused persons namely Mohd. Azad Alam, Shahzad, Naeem @ Naimuddin, Mohd. Arif and Sarfaraz @ Sonu in the incident and also confirm the use of knives and firearm (dangerous weapons) during the incident.
Heard arguments on the point of sentence. It is submitted by the Ld. Defence Counsels that the convict Mohd. Azad Alam is aged about 30 years having a family comprising of aged father, mother, wife and two sons. He is 5th class pass and a labour by profession. The convict Shahzad is a young boy of 20 years having State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 98 of 92 a family comprising of father, mother, four elder sisters and one younger brother. He is totally illiterate and a tailor by profession. The convict Naeem is aged about 28 years having a family has a family comprising of father, mother, two younger sisters and two younger brothers. He is 7th class pass and a labour by profession. The convict Mohd. Arif is a young boy of 21 years having a family comprising of father, mother, one elder sister, one younger sister and two younger brothers. He is 9th class pass and was doing a private job. The convict Sarfaraz is a young boy aged 29 years having a family comprising of wife, two daughters, one younger brother and one younger sister. He has studied upto class 3rd and is a tailor by profession.
Ld. Counsels for the convicts have prayed that a lenient view be taken against the convicts keeping in view their family background. It is pointed out that the accused Mohd. Azad Alam and Shahzad are first time offenders and have no previous criminal involvement.
Ld. Addl. Public Prosecutor for the State on the other hand requests for an exemplary punishment for the convicts. He has pointed out that though the convicts Mohd. Azad Alam and Shahzad are first time offenders, but the convicts Sarfaraz @ Sonu, Naeem @ Naimuddin and Mohd. Arif are desperate and ruthless criminals. He has also pointed out that the convict Mohd. Naeem and Mohd. Arif State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 99 of 92 are the Bad Character of the area.
The Ld. Addl. PP for the State has placed on record the details of previous involvements of the convict Naeem @ Naimuddin which are as under:
Sr. FIR No. Police Station Under Sections No. 1. 248/2004 Jahangir Puri 411 IPC 2. 384/2003 Saraswati Vihar 379 IPC 3. 6/2004 Saraswati Vihar 457/380 IPC 4. 1094/2006 Saraswati Vihar 457/380/411 IPC 5. 792/2006 Saraswati Vihar 379/34 IPC 6. 362/2007 Moti Nagar 457/380/411/34 IPC 7. 1127/2005 Saraswati Vihar 24/54/59 of Arms Act 8. 285/2007 Prashant Vihar 25 Arms Act 9. 216/2008 Saraswati Vihar 457/380/411 IPC 10. 217/2008 Saraswati Vihar 379/411/34 IPC 11. 673/2006 Saraswati Vihar 25 Arms Act 12. 216/2006 Saraswati Vihar 25 Arms Act 13. 285/2007 Saraswati Vihar 25 Arms Act 14. 1110/2006 Samai Pur Badli 399/402 IPC 15. 1096/2006 Ashok Vihar 457/511/34 IPC 16. 814/2006 Saraswati Vihar 457/511/34 IPC 17. 412/2007 Prashant Vihar 379/411/34 IPC 18. 1043/2007 Prashant Vihar 379/411 IPC 19. 160/2005 Prashant Vihar 379 IPC 20. 554/2007 South Rohini 379/411 IPC State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 100 of 92 21. 28/2005 Prashant Vihar 379 IPC 22. 428/2003 Prashant Vihar 379/411 IPC 23. 1094/2006 Prashant Vihar 457/380 IPC 24. 16/2005 Prashant Vihar 379 IPC 25. 217/2005 Prashant Vihar 379 IPC 26. 81/2008 Hauz Khas 392/34 IPC 27. 46/2008 Keshav Puram 379 IPC
In so far as the convict Arif is concerned, the Ld. PP for the State has placed on record the details of his criminal involvements which is as under:
Sr. FIR No. Police Station Under Sections No. 1. 21/2009 Maurya Enclave 356/379/34 IPC 2. 4/2009 South Rohini 457/380/411/34 IPC 3. 4/2009 Saraswati Vihar 457/380/411/34 IPC 4. 15/2009 Saraswati Vihar 457/380/411/34 IPC 5. 6/2009 Saraswati Vihar 307/34 IPC 6. 416/2010 Moti Nagar 380/457/411/34 IPC
He has also placed on record the previous involvements of the convict Sarfaraz which is as under:
Sr. FIR No. Police Station Under Sections No. 1. 81/2008 Hauz Khas 392/34 IPC 2. 46/2008 Keshav Puram 379 IPC State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 101 of 92
I have considered the rival contentions. The manner in which the convicts Sarfaraj and Shahzad first conducted a recce at the shop of the complainant and thereafter convicts Naeem @ Naimuddin, Mohd. Arif, Sarfaraz @ Sonu, Shahzad and Mohd. Azad Alam thereafter committed armed dacoity in the shop, indicate that on their part the convicts had come with full preparation and planning. In fact after the convict Naeem first entered the shop and put a knife on the back of Amar Nath Gupta (who offered some resistance) when immediately the convict Mohd. Arif entered the shop carrying a knife in his hand and directed two knife blows on the victims but for the fact it was by sheer providence & luck and by presence of mind shown by the employees Shyam Bahadur and Vijay Bahadur that Amar Nath Gupta did not receive any injuries. Simultaneously the convict Sarfaraz entered the shop with a katta in his hand and after showing the same to the victims he removed cash from the counter and thereafter escaped after showing the arms to the victims. The entire incident lasted for hardly 21 seconds as caught in the CCTV cameras but for the victims who saw the face of death every moment it must have been the most horrifying unending time of their lives. This establishes that the convicts are desperate and ruthless criminals who can go to any extent including killing any person for sole monetary gains. Undue sympathy, under these circumstances, to impose inadequate sentence upon hardened State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 102 of 92 criminals habituated to crime would do more harm to the justice system to undermine the public confidence in the efficacy of law and society cannot long endure under such serious threats. It is the duty of this court to award a sentence having regard to the nature of the offence and the manner in which it was executed or committed. (Ref:
Sevaka Perumal Etc. Vs. State of Tamil Nadu reported in AIR 1991 SC 1463).
Coming first to the convicts Naeem @ Naimuddin, Sarfaraz @ Sonu and Mohd. Arif, they are desperate criminals involved in large number of cases. In fact Naeem @ Namuddin and Mohd. Arif are the BCs (Bad Characters) of the area. The act of convicts Naeem @ Naimuddin, Sarfaraz @ Sonu and Mohd. Arif in using the deadly weapons i.e. knives and pistol not only by directing their weapons to the victims but also the specific act of convict Mohd. Arif in actually using the deadly weapon i.e. knife while inflicting two blows on the victims, that calls for imposition of harsh punishment. From the visuals of CCTV footage it is writ large that the convict Mohd. Arif had directed two knife blows to the victims, intending to kill whoever who came in their way. The body language of the convicts particularly of Mohd. Arif, Naeem and Sarfaraz at the time of the incident was highly aggressive and fearprovoking particularly when Arif directed two knife blows towards the victims and God knows what could have happened to the complainant Amar State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 103 of 92 Nath Gupta a senior citizen of 71 years of age had his employees not shown their presence of mind and intervened.
The aggravating factors are that the incident of dacoity was committed after sunset during night hours. Further, the convicts Naeem @ Naimuddin, Sarfaraz @ Sonu and Mohd. Arif have criminal antecedents so much so that Naeem and Arif are also BCs of the area. In fact the track record of convict Naeem (i.e. from the dossier which is placed on record) reflects that whenever Naeem is released on bail, he invariably gets involved in some other criminal case.
Law and order situation has been deteriorating in the country and has worsen in the recent past. Instances of persons getting involved in criminal activities of robbing innocent persons by putting them under threat of death, are also on rise. Trigger friendly criminals life the convicts before this Court unhesitatingly and indiscriminately use dangerous firearms on helpless victims as has happened in the present case. The acts of the convicts has a tendency of spreading terror in the society and adversely affecting social order and the faith of people in the system.
From the manner in which the offence has been committed in consortium and conjointly by the convicts proves that they are all a part of a gang of dacoits where senior members i.e. Naeem, Arif and Sarfaraz had actually committed the incident State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 104 of 92 whereas the younger boys i.e. Mohd. Azad Alam and Shahzad stood on a guard / watch outside the shop near the counter. In fact the convicts Naeem @ Naimuddin, Sarfaraz @ Sonu and Mohd. Arif who used to be small time thieves have now apparently graduating into dacoits / murderers. This being the background, they deserves no leniency and I hereby award the following punishment to the convicts Mohd. Arif, Naeem @ Naimuddin and Sarfaraz:
1. For the offence under Section 395 r/w Section 397 Indian Penal Code the convicts are sentenced to Rigorous Imprisonment for Life.
In so far as the convict Sarfaraz @ Sonu is concerned, he has also been held guilty for the offence under Section 25 of Arms Act, for which he is sentenced to Rigorous Imprisonment for a period of Three Years and fine to the tune of Rs.2,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for 15 days which punishment shall run concurrently to the punishment awarded to him under Section 395 r/w 397 Indian Penal Code as above.
Coming now to the convicts Mohd. Azad Alam and Shahzad. They are young boys and have no previous criminal record. They are both seen unarmed at the time of the incident and the visuals do not show the presence or use of any weapon. In fact State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 105 of 92 the convict Mohd. Azad Alam was standing on the road a little distance from the shop and was the first one who ran away together along with convict Shahzad after the other three convicts had successfully looted the cash from the counter. Under the given circumstances, a lenient view is taken against both these convicts Mohd. Azad Alam and Shahzad. I award the following punishment to Mohd. Azad Alam and Shahzad:
1. For the offence under Section 395 Indian Penal Code the convicts are sentenced to Rigorous Imprisonment for Seven (7) Years and fine to the tune of Rs.2,000/ (each). In default of payment of fine the convict shall further undergo Simple Imprisonment for 15 days (each).
Benefit of Section 428 Cr.P.C. shall be given to the convicts for the period undergone by them during the trial.
The convicts are informed that they have has a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convicts free of costs and another be attached with their jail State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 106 of 92 warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 28.2.2013 ASJII(NW)/ ROHINI
State Vs. Mohd. Azad Alam Etc., FIR No. 36/11, PS Saraswati Vihar Page 107 of 92