Delhi District Court
State vs . Subhan Khan @ Tt on 2 May, 2018
IN THE COURT OF MS. RASHMI GUPTA, METROPOLITAN
MAGISTRATE : 09 (CENTRAL) TIS HAZARI COURTS, NEW DELHI
FIR No. 495/15
PS: Burari
U/s 392/34 IPC
State Vs. Subhan Khan @ TT
JUDGMENT
1. New case No. : 294299/16
2. Date of Commission of the offence : 22.04.2015
3. The name of the complainant : Vijay Kumar
4. Name & address of accused : Subhan Khan @ TT, S/o
Mohd. Nazir, R/o Gali No. 115,
Sant Nagar Burari Delhi.
5. Date of institution of FIR :22.04.2015
6. Date of receipt of this case in : 29.01.2016
this court
7. The plea of the accused : Pleaded not guilty
8. Date of reserving the case for order : 19.04.2018
9. Date of Decision : 02.05.2018
10. Final order : Acquitted
Brief Reasons for such Decision:-
1. The accused Subhan Khan @ TT has stood trial for offence u/s 392/34 IPC on the allegation that on 22.04.2015 at about 9.15 am in front of House No. 7, Gali No. 15, Main Market, Sant Nagar, Burari the accused alongwith associates(unknown) snatched the gold chain alongwith locket of the complainant Shobha Singh.
State Vs. Subhan Khan @ TT, FIR No 495/15, PS Burari Page No.1 of 10
2. Challan in the case was filed after completion of investigation and thereafter cognizance of the offence u/s u/s 392/34 IPC was taken and thereafter copy of challan was supplied to the accused Subhan Khan @ TT On the basis of prima facie evidence charge was framed against the accused for the offence u/s 392/34 IPC on 16.03.2016 to which he pleaded not guilty and claimed trial.
3. In support of its case prosecution has examined as many as 06 witnesses. Smt. Shobha Rani has been examined as PW1. Ct. Amit Kumar has been examined as PW2. SI Jitender Rana has been examined as PW3. ASI Sukhpal Singh has been examined as PW4. Ct. Sudhir has been examined as PW5. SI Vijay Kumar has been examined as PW6.
4. PW-1 Sobha Singh deposed as follows "I reside at the above mentioned address on rent on 22.04.2015, at about 9.15 am I had come down stairs from my residence on the first floor for purchasing milk at Gali No. 15. I had gone to parchun shop adjacent to Pawan Sport in gali no .15, Sant Nagar, Burari to purchase milk. Thereafter, the boy who is present before the court today (correctly identified) came on the shop and asked for toffee of one rupee from the shopkeeper, he was asking for different toffees on this, the shopkeeper got irritated and asked him to take back his money and go away in the meanwhile I was standing on the same shop only. Thereafter, the boy present in the court today took one toffee and when I turned back towards my house after taking milk the accused present in the court today snatched my gold chain which I was wearing in my neck which was weighing about 20 grms and was also having a pendant of Ohm. Thereafter, he sat on the bike on which one boy was already sitting and had kept it started. Thereafter, both the boys ran away on the State Vs. Subhan Khan @ TT, FIR No 495/15, PS Burari Page No.2 of 10 motorcycle. Motorcycle was not having number plate. It was of black and white colour. When, I had made hue and cry about the snatching people of the locality who had gathered there chased the boys on the bike. The boy who was sitting on the driver seat was wearing a helmet of black colour and the people while trying to catch them got hold of the helmet but both the boys ran away. Thereafter I made 100 nos call after some time police officials reached at the spot. Thereafter, I narrated the said incident to the police officials after that police officials recorded my statement which is Ex. PW1/A bearing my signature at point A. After some times, police officials called me. After that I went to police station where police officials shown to some person to me. After seeing, I identified the accused Subhan Khan @ T T and I stated to the police official that on the day of incident the said person was snatched my gold chain. Police officials recorded my statement."
5. PW-2 Ct. Amit Kumar deposed as follows "On 04.12.2015 I was posted at PS Burari as a Ct. On that SI Vijay Kumar called me and instructed me to reached at Labour Chowk. Thereafter, I reached at the Labour Chowk and found one secret informer standing along with SI Vijay. The said secret informer pointed out towards one person stating that he is the same person who had snatched the chain from Gali No. 15, Main Market, Sant Nagar, Delhi before 7-8 months. Thereafter, I along with SI Vijay apprehended the said person and SI Vijay Kumar started interrogating him. During the interrogation the said person had not given any satisfactory answer to SI Vijay. After sometime the said person disclosed that I along with Sonu @ Chikna had committed the robbery at Gali No. 15, Main Market, Sant Nagar, Delhi on 22.04.2015. The said person also disclosed that he had committed robbery 3 times. Thereafter, SI Vijay arrested the said person whose name later on State Vs. Subhan Khan @ TT, FIR No 495/15, PS Burari Page No.3 of 10 disclosed to be Subhan Khan in the present case vide arrest memo which is exhibited as Ex. PW-2/A bearing my signature at point A. Thereafter, IO conducted the personal search of the accused Subhan Khan vide memo exhibited as Ex. PW-2/B bearing my signature at point A. Thereafter, IO recorded the disclosure statement of the accused which is exhibited as Ex. PW-2/C bearing my signature at point A. Thereafter, we took the accused and went to the spot and after that IO prepared pointing out memo at the instance of the accused which is exhibited as Ex. PW-2/D bearing my signature at point A. Thereafter, we took the accused and went to the hospital for conducting his medical examination. After medical examination the accused was sent to police lockup and the arrest information given to his family member namely Rubina. Thereafter, IO recorded the statement. Accused present in the court today (correctly identified)."
6. PW-3 SI Jitender Rana deposed as follows "On 22.04.2015, I was posted at PS Burari as a SI. On that day I received a PCR call regarding snatching of chain vide DD No. 22 B which is exhibited as Ex. PW-3/A. Thereafter, I along with Ct. Sudhir went to the spot i.e. in front House No. 7, Gali No. 15, Sant Nagar, Burari where I met complainant namely Shobha Singh. Thereafter, I enquired about the incident from complainant and recorded her statement. Thereafter, I prepared the rukka which is already exhibited as PW-1/A bearing my signature at point B and also made an endorsement on the same which is exhibited as Ex. PW-3/B bearing my signature at point B and the rukka was handed over to Ct. Sudhir for registration of FIR. Thereafter, Ct. Sudhir went to the police station with the original rukka for registration. In the meantime, I prepared the site plan at the instance of complainant which is exhibited as Ex. PW-3/C bearing my signature at State Vs. Subhan Khan @ TT, FIR No 495/15, PS Burari Page No.4 of 10 point A. Thereafter, Ct. Sudhir came at the spot with the copy of FIR and original rukka. Thereafter, he handed over the rukka and copy of FIR to me. Thereafter, I mentioned the FIR on the site plan. Thereafter, I recorded the supplementary statement of complainant. Thereafter we tried to search the accused and case property i.e. gold chain and one locket but could not found the same after all the efforts. Thereafter, I along with Ct. Sudhir came back to the police. Thereafter, I recorded the statement of Ct. Sudhir. During the investigation, I got transferred from PS Burari to Incharge Police Post Jharoda PS Burari and as per the directions of SHO the case file was handed over to MHC(R)."
7. PW-4 ASI Sukhpal Singh deposed as follows "On 22.04.2015 I was posted as PS Burari as HC. On that day my duty hours were from 8.00 am to 4.00 pm. On that day, at about 11.05am I received tehrir/rukka from Ct. Sudhir which was sent by SI Jitender Rana. On the basis of which, I instructed the computer operator to register the FIR who as per my instructions and dictation, registered FIR No. 495/15, u/s 392/34 IPC which runs into 02 pages. The computer device installed at the PS for registration of FIR is such that once an information is fed , put or installed in it , it cannot be altered / deleted /edited at any later stage. The computer generated copy of FIR is Ex.PW4/A (OSR). I also made my endorsement on the rukka from point A to A1 bearing my signature at Point C which is Ex. PW4/B. The copy of FIR and original rukka were given to Ct. Sudhir to further hand over to SI Jitender Rana for further investigation."
8. PW-5 Ct. Sudhir deposed as follows "On 22.04.2015 I was posted as PS Burari as Ct. On that day my duty hours were from 8.00 am to 8.00 pm. On that day, at about 9.45am SI Jitender Rana received a call regarding chain snatching. On his directions I joined him in State Vs. Subhan Khan @ TT, FIR No 495/15, PS Burari Page No.5 of 10 investigation. I alongwith SI Jitender Rana went to the spot ie. H. No 7, Gali No.15, Main Market, Sant Nagar, Burari, Delhi where we met complainant who informed SI Jitender Rana about the incident and the same was reduced into writing which is already Ex. PW1/A. Thereafter, SI Jitender Rana handed me over the original complaint and rukka to get the FIR registered in the present case. As per his directions, I went to PS Burari and handed over the original complaint and tehrir to duty officer to get the FIR register. After some time, duty officer handed me over the original copy of rukka and complaint alongwith a copy of FIR No 495/15. Thereafter, I returned to the above-said spot and handed over the copy of FIR and original complaint and rukka to SI Jitender Rana. Thereafter, I alongwith SI Jitender Rana returned to PS Burari. During the course of investigation IO recorded my statement U/s 161 Cr.P.C."
9. PW-6 SI Vijay Kumar deposed as follows "He deposed that on 15.10.2015 I was posted as SI at PS Burari. On that day, the investigation of the present case was marked to me for further investigation. I made efforts to trace the accused.
On 04.12.2015, one informer informed me that the accused of the present case will arrive at labour chowk and if raided he can be apprehended. I alongwith Ct. Amit and informer reached at Labour Chowk Main Road Burari. At 9.30PM accused appeared at labour chowk, the informer identified the accused. Accused was apprehended. He was interrogated, who disclosed his name Subhan Khan @ TT he admitted his involvement in the present case alongwith the co-accused. (the accused person is present in the court today and correctly identified by the witness). Accused was arrested vide arrested memo which is already Ex. PW2/A bearing my signature at State Vs. Subhan Khan @ TT, FIR No 495/15, PS Burari Page No.6 of 10 point B and his personal search was conducted vide personal search memo which is already Ex. PW2/B bearing my signature at point B. Accused was kept in muffled face as TIP was conducted. Accused also led us to the place of incident and pointing out memo was prepared which is already Ex. PW2/D bearing my signature at point B. Accused was brought at PS and his disclosure statement was recorded which is already Ex. PW2/C bearing my signature at point B. On 05.12.2015, accused was produced in muffled face before the court for TIP proceedings. Accused refused to participate in TIP. I collected the documents related to TIP which is Ex. PW6/A. I took one day PC remand. Complainant Shobha Singh reached at PS as she had got information that one snatcher has been arrested. Complainant identified the accused at PS. I recorded the supplementary statement of the complainant. I tried to trace the co-accused but he could not be traced.
On 06.12.2015, accused was produced before the court and he was sent to JC. Thereafter, I recorded the statement of the witnesses, prepared the challan and same was filed before the Hon'ble court."
10. As the accused did not deny the TIP proceedings conducted by Sh. Arul Verma, Ld. MM, so the formal proof of the same was dispensed with and is was exhibited on record.
11. After closure of prosecution evidence, statement of accused Subhan Khan @ TT U/s 313 Code of Criminal Procedure, 1973 was recorded. Incriminating evidence was put to the accused and he was questioned on the same. He denied all the allegations and stated that he was innocent and had been implicated falsely in the present case. The accused opted not to ad any Defence Evidence.
12. I have gone through the rival submissions of both the parties as well as State Vs. Subhan Khan @ TT, FIR No 495/15, PS Burari Page No.7 of 10 material on record carefully.
13. It has been argued on behalf of the prosecution that through witnesses examined by him as mentioned above it has been successful in proving its case beyond reasonable doubt. The accused had been correctly identified in the court by the prosecution witnesses including the PW1/Complainant Shobha Singh. The accused had disclosed to have committed the present offence with one Sonu @ Chikna, however, the latter could not be arrested. The accsued Subhan Khan also refused to participate in the TIP proceedings. Thus, the accused Subhan Khan @ TT deserves to be convicted in the present case.
14. On the other hand, it has been argued by Shri Manish Malik Ld. LAC that the accused has been falsely implicated in the present case merely on the basis of disclosure statement. No recovery has been effected from the accused. PW1/Complainant Shobha Singh had deposed in the court that she was shown the accused at the police station. Thus, the prosecution has failed to prove its case beyond reasonable doubt and the accused deserves to be acquitted in the present case.
15. I am of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt as there is no concrete evidence against the accused on record on which the conviction of the accused can be based upon. The incident in question took place on 22.04.2015 and the accused was arrested only on 04.12.2015 on the basis of secret information by SI Vijay alongwith Ct. Amit at Labour Chowk. There is no DD entry regarding the departure of these police officials from the PS. PW1/Complainant Shobha Singh stated in her examination-in-chief and also admitted in her cross examination that the accused was shown to her at the Police Station on 04.12.2015. The State Vs. Subhan Khan @ TT, FIR No 495/15, PS Burari Page No.8 of 10 refusal on the part of the accused to participate in the TIP proceedings came only thereafter and the accused had also stated the reason for refusal to participate in the TIP proceedings to the Ld. Magistrate before whom the proceedings were being conducted on 05.12.2015 that 'the complainant had already seen me in the police station'. Thus, from the statement of the complainant(in the court) and the accused(before the TIP Magistrate) it becomes very clear that the accused was shown to the Complainant Shobha Singh at the PS. Thus, the identification of the accused by the complainant in the court is tainted and reliance cannot be placed upon the same. Refusal on the part of the accused to participate in the TIP proceedings is also well explained and any adverse inference cannot be drawn against him on the basis of his refusal to participate in the TIP proceedings.
16. There is a gap of about eight months in the incident and the arrest of the accused and no recovery has been effected from the accused.
17. Now the only evidence which remains against the accused is his disclosure statement which was given to SI Vijay in presence of Ct. Amit on 04.12.2015. Any such statement is hit by section 25 of the Indian Evidence Act. It was merely a disclosure statement and no recovery had been effected pursuant to that.
18. There is contradiction in the statement of PW1/Complainant Shobha Singh as on 05.12.2015 she stated in her statement given to the police u/s 161 Cr.P.C. that the accused whom she had identified at the PS was driving the motorcycle and the boy who had snatched her chain sat on the back seat of the motorcycle, whereas in court on oath she had stated that the person who was present in the court had snatched the chain from her neck on the day of the incident. No explanation for the same has been furnished on behalf of the prosecution.
State Vs. Subhan Khan @ TT, FIR No 495/15, PS Burari Page No.9 of 10
19. The shopkeeper who was also a witness to the incident was never joined in the process of investigation and was never examined in the court as a witness. The co-accused whose name surfaced in the disclosure statement was never apprehended/arrested and was never produced before the court.
20. It is a settled proposition of criminal trial that it is for the prosecution to establish its case beyond all reasonable doubt. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prose- cution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
21. Thus, in view of the above, I am of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt and the accused Subhan Khan @ TT deserves acquittal.
22. Thus, the accused Subhan Khan @ TT stands acquitted in FIR No. 495/15, PS Burari, u/s 392/34 IPC.
23. Bail bond/surety bond of the accused stands discharged. Original documents, if any, of the surety of accused be returned to him against countersigned photocopy of the same. Endorsement, if any, on the original documents of the surety be also cancelled.
24. Put up for furnishing bonds u/s 437A Cr.P.C. Digitally signed by RASHMI RASHMI (Announced in open Court GUPTA GUPTA Date:
2018.05.03 on 02.05.2018) 15:16:09 +0530 (Rashmi Gupta) MM-09/Central/THC 02.05.2018 The judgment contains 10 pages and all the pages bears my signatures.
(Rashmi Gupta) MM-09/Central/THC 02.05.2018 State Vs. Subhan Khan @ TT, FIR No 495/15, PS Burari Page No.10 of 10