Delhi District Court
State vs 1. Safiq, S/O Sh. Rafiq, R/O H. No. S-83, ... on 21 February, 2023
IN THE COURT OF SH. DHIRENDRA RANA
ADDL. SESSIONS JUDGE(FTC)-02, SOUTH EAST DISTRICT
SAKET COURTS : DELHI
In the matter of:-
(Sessions Case No. 2550/2016)
FIR No. 67/2016
Police Station Hazrat Nizamuddin
Charge sheet filed Under 394/397/325/411/34 IPC
Section
Charge framed Under 394/397/325/411/34 IPC
Section
State V/s 1. Safiq, S/o Sh. Rafiq, r/o H. No. S-83, Nizam
Nagar Basti, Hazarat Nizamuddin, New
Delhi.
2. Mohd. Anwar Hussain S/o Sh. Mohd. Heera
r/o Footpath, DDA Park, Near Lodhi
Flyover, Basti, Hazrat Nizamuddin, New
Delhi.
......Accused Persons
Date of institution 28.04.2016
Arguments concluded on 21.02.2023
Judgment Pronounced on 21.02.2023
Decision Acquitted
JUDGMENT
BRIEF FACTS
1. Events which set the prosecution machinery into motion is that on 27.01.2016, an information in the form of DD entry No. 7A and MLC of person namely Tenzing from Fortis Hospital Vasant Kunj were received by ASI SC No. 2550/2016, FIR No. 67/16, PS Hazrat Nizamuddin Page No. 1 of 15 State Vs. Safiq etc. Rampal. He reached Fortis hospital, as per MLC, Tenzing had suffered simple injury and declared unfit for statement. He was accompanied by his friend Tashi Riziju, who accompanied the injured at the time of incidence. He handed over one hand written complaint to ASI Rampal addressed to the SHO. As per his complaint he stated that he along with Injured Tenzing was travelling in a taxi. When they reached near Nizamuddin Darga, suddenly 4-5 persons came in front of the taxi and the driver stopped the same. Those 4-5 persons forcibly took out the complainant and injured from the taxi and started assaulting them. Injured sustained injuries during the scuffle. Those assailants robbed injured Tenzing's Iphone 6 and Rs. 30,000/-. They also robbed complainant's mobile make Sony and also his wallet containing driving license and other documents. Those attackers also robbed the mobile phone of the cab driver Ravi. After robbing the articles, all accused persons fled away from the spot. As none of them was left with any mobile phone to call the police, they all went to Tenzing's house and thereafter, they went to Fortis Hospital Vasant Kunj. On the basis of complaint, ASI Rampal prepared the rukka and got the FIR registered through Ct. Hira Lal u/s 394/397/34 IPC. Thereafter, matter was investigated by ASI Satender Kumar. Crime team was called on the spot for inspection and exhibits were collected. On the basis of secret information accused Safiq Mohd., Anwar Hussain and Sahadat (since deceased) were arrested and accused Safiq was found in possession of Iphone 6. All accused persons refused to participate in TIP proceedings. IO got the opinion on the MLC of the injured and the injuries were found to be simple and blunt in nature, accordingly section 325 IPC was added by the IO. IO could not arrest co-accused Haroon for want of his particulars. Mobile phone of cab driver Ravi was recovered by him in his car after the incident. After completion of the investigation charge-sheet was filed by the IO u/s 394/397/325/411/34 IPC.
SC No. 2550/2016, FIR No. 67/16, PS Hazrat Nizamuddin Page No. 2 of 15 State Vs. Safiq etc. CHARGE
2. On committal of the case to the Court of Sessions, vide order dated 02.06.2016 charged u/s 394/397/325/411/34 IPC against accused Safiq whereas accused Mohd. Anwar Hussain and Shadat were charged u/s 394/325/34 IPC to which they pleaded not guilty and claimed trial. Proceedings against accused Shadat were abated vide order dated 23.11.2021 PROSECUTION EVIDENCE
3. Thereafter, prosecution in support of its case have examined 7 witnesses in all.
MATERIAL/EYE WITNESSES
4. PW1 is Ravi, is the driver at D.S Tour & Travels, Nehru Nagar. He deposed that on 26/27.01.2016 at about 08.30 PM two boys booked his car to have a dinner at Vasant Vihar and they had to come back after dinner. From Vasant Vihar, he along with two boys went to South Extension where two boys who were his passengers, had dinner at South Extension. Thereafter, he along with those persons were coming back from South Extension and going to Vasant Vihar. When they were coming back, they forgot the way of Vasant Vihar and reached near Nizamuddin where one boy got down from the car and went near the persons sitting at Nizamuddin to ask the way of Vasant Vihar. He saw that the said persons sitting at Nizamuddin started manhandling with his passenger and on seeing this, the another boy sitting in his car also got down and went for the help of co-passenger. He know the name of one passenger as Tenzin. He also went there to help the passengers but the unknown persons of Nizamuddin also gave beatings to him. Somehow they managed to escape from the spot and came inside the vehicle and then he dropped his both the SC No. 2550/2016, FIR No. 67/16, PS Hazrat Nizamuddin Page No. 3 of 15 State Vs. Safiq etc. passengers at Vasant Vihar. From Vasant Vihar, he reached to the office after some time. He received a phone call from PS Nizamuddin and then he came to know that a FIR has been registered in this case. He could not saw the persons who gave him beatings as it was night time. He has also been cross examined by Ld. Addl. PP for the State he has stated that his statement was recorded by police official. He was going to Vasant Kunj from Ashram Chowk. He also admitted that Tenzin got down from his car at around 11/11:30 PM and when Tenzin asked the accused persons for way of Vasant Vihar, the said accused persons tried to remove his purse and therefore on his objection, they gave beating to Tenzin and snatched the mobile phones and wallet of his passengers during the scuffle. He denied the fact that during the scuffle those boys had given a danda blow on the head of Tenzin in his presence. He stated that on 27.01.2016 he got his mobile phone in the vehicle when he was cleaning the same. He also admitted the fact that on 29.01.2016 he went to PS for identification of the said boys. He denied the fact that on the said date he identified Safiq, Sahadat and Anwar in the Police Station who gave beatings to him and his two passengers on 26.01.2016 and got the mobile phone of Tenzin.
PW3 is Sh. Tenzing Tsang who is the complainant and one of the injured in this matter. He deposed that on 26.01.2016 at about 10.00 PM he along with his friend Tashi were going to Vasant Kunj from Nizamuddin in a taxi. He got down from taxi near flyover to ask the way of Vasant Kunj. There were five-six persons when he asked them about the way of Vasant Kunj, they started searching him. They snatched his I-phone, cash of Rs. 30,000/- and also beaten him. One of them hit on his head from behind. He became unconscious. He regained his consciousness when he was going to his house. He has deposed that he cannot identify the accused persons. In cross examination done SC No. 2550/2016, FIR No. 67/16, PS Hazrat Nizamuddin Page No. 4 of 15 State Vs. Safiq etc. by Ld. Addl. PP for the State he has stated that he do not remember if anyone of them punched his face or not. He denied the fact that when his friend Tashi Khandu tried to save him, he was also beaten. He stated that when his friend Tashi Khandu tried to save him, those persons also robbed his mobile and wallet. He also stated that after the incidence he was taken to Fortis Hospital. He further deposed that on 29.01.2016 he went to PS where he produced mobile bill to the IO. He denied the fact that on the said date he had seen the accused persons in PS or he identified them in PS and he came to know the name of one person as Safiq. He deposed that on 29.01.2016, he obtained his mobile phone on supardari from PS.
5. PW2 is Tashi Khandu Rijiju, who is one of the injured in this matter. He deposed on the lines of PW3 qua the occurrence of incident but he also failed to identify the accused persons, who were involved in the said incident. He has also been cross examined at length by Ld. Addl. PP for the State but of no avail. He exhibited his complaint given to police as Ex. PW2/A. He also exhibited the site plan as Ex PW2/B which was prepared by IO at his instance. He exhibited the case property i.e., mobile phone as Ex. P1 and blood stained pant as Ex. P2.
WITNESSES OF INVESTIGATION
6. PW4 is HC Hira Lal, who deposed that on 27.01.2016, on receipt of DD No. 7A, he went to Fortis Hospital, Vasant Kunj where injured Tenzing was found admitted in the hospital but he did not give his statement. He deposed that one Tashi Khandu also met in the hospital and gave his written complaint to HC Rampal and they came to PS and got the FIR registered. After registration of FIR, investigation of this case was handed over to ASI Satender.
SC No. 2550/2016, FIR No. 67/16, PS Hazrat Nizamuddin Page No. 5 of 15 State Vs. Safiq etc. Then he alongwith HC Rampal, IO and complainant went to the spot i.e. DDA Park, near Lodhi Flyover, where they found that some blood spot on footpath as well as on cover of one car. One broken tooth also found and the same was taken into possession by the IO. He further deposed that IO called the crime team at the spot and photographs were got conducted. Blood sample was lifted from the spot including piece of stones and seized by the IO vide memos are Ex. PW4/A, Ex. PW4/B and Ex. PW4/C.
7. PW5 ASI Rampal deposed that he received DD No. 7A on 26.01.2016 around 03:32 AM and also received MLC of person namely Tenzing from Fortis Hospital Vasant Kunj. The MLC was handed over by duty officer. He along with Ct. Hira Lal went to Fortis Hospital Vasant Kunj where he met injured Tenzing in the hospital. He received the MLC from the hospital but statement of injured could not be recorded as he was under severe pain. His associates namely Tashi Riziju was also present in the hospital, who was accompanying the injured at the time of alleged incident and handed him over one hand written complaint in English addressed to the SHO. He also received torn clothes of the injured as well as his blood sample from the doctor which was seized by him vide seizure memo which is already Ex PW4/B. He also seized the pants of injured vide seizure memo which is already Ex. PW4/C. From hospital he along with Ct. Hira Lal and complainant came back at PS. He prepared the tehrir on the complaint of Mr. Tashi Riziju. Tehrir is Ex. PW5/A. He got the FIR registered u/s 394/397 IPC through duty officer. After registration of FIR, further investigation was entrusted to ASI Satyender as per directions of SHO. IO lifted the blood sample from the ground with the help of cotton and kept the same in a plastic tube and labelled it as Mark 'A1', blood samples from the car cover with the help of cotton and kept the same in a SC No. 2550/2016, FIR No. 67/16, PS Hazrat Nizamuddin Page No. 6 of 15 State Vs. Safiq etc. plastic tube and labelled it as Mark 'A2'. IO also lifted the broken piece of tooth of the injured and kept the same in a separate plastic container and Marked it as 'A3' and seized concrete having blood stains over it and Marked it as 'A4', seized the earth control having blood stains over it and Marked it as 'A5', car cover having blood stains over it and prepared a pullanda of white cloth and Marked it as 'A6'. IO seized and sealed all the exhibits with the seal of SK and handed over the seal to him. Thereafter, his statement was recorded by the IO.
8. PW6 SI Satender Singh has been examined as PW5 inadvertently but the mistake stands rectified and his testimony shall be read as of PW6. He is the investigating officer. He deposed about the investigation carried out by him. He deposed that he met Ct. Hira Lal, Ct. Rampal and eye witness Tashi Khandu at the PS and they all went to the spot. Crime team was called at the spot and spot was photographed from all possible angles. PW6 exhibited photographs of the spot as Ex. P3. He further deposed that crime team lifted the blood sample from the ground as well as from the car cover. The exhibits i.e., stone having blood stains, broken tooth, earth control, blood sample lifted from the surface, blood sample lifted from car cover and car cover were handed over to him by the crime team which were sealed and seized by him. He collected the inspection report prepared by crime team In- charge SI Lakhmi Chand which is Ex. PW6/A. He recorded the statement of eye witness. On the basis of secret information, he apprehended the accused persons. He conducted personal search of accused Shafiq and he was found in possession of one iphone which was found to be of injured Tanzing. He seized the mobile phone vide seizure memo which is Ex. PW6/B. Accused persons were interrogated and they admitted their involvement in the commission of SC No. 2550/2016, FIR No. 67/16, PS Hazrat Nizamuddin Page No. 7 of 15 State Vs. Safiq etc. crime. He arrested accused Shafiq, Mohd. Anwar Hussain and Sahadat vide arrest memo which are Ex. PW6/C, Ex. PW6/D and Ex. PW6/E respectively and conducted their personal search vide personal memos are Ex. PW6/F, Ex. PW6/G and Ex. PW6/H. He also recorded their disclosure statements which are Ex. PW6/I (Shafiq), Ex. PW6/J (Mohd. Anwar) and Ex. PW6/K (Sahadat) and also prepared pointing out memo of the place of occurrence at the instance of all accused persons which is Ex. PW6/L. Accused persons disclosed the involvement of one another person namely Haroon and he tried to locate the fourth accused but he could not succeed as he was a vegabond and no residential address was available.
Next day all accused persons were produced before the concerned MM and he moved an application for TIP proceedings. Carbon copy of application is Ex. PW6/M. He filed the age memo of accused Sahadat, Shafiq and Mohd. Anwar which are Ex. PW6/N, PW6/O and Ex. PW6/P. As accused Shafiq used to study in DPS Mathura Road, he got collected his age poof from the school. Accused Mohd. Anwar and Sahadat were medically examined at DDU Hospital for the purpose of age verification. As per their medical examination report, they were found to be in the age group of 20-22 years on the date of commission of offence. Accused Shafiq was also found to be major.
He collected the opinion of the doctor qua the nature of injuries suffered by the injured from Fortis Vasant Kunj and the injuries were grievous in nature. He added section 325 IPC in the present case on the basis of opinion of the doctor. He got deposited the exhibits to FSL from malkhana through Ct. Sehdev. After completion of investigation, he recorded the statement of witnesses and filed the charge sheet before the concerned MM. He also filed supplementary charge sheet after collection of FSL result.
SC No. 2550/2016, FIR No. 67/16, PS Hazrat Nizamuddin Page No. 8 of 15 State Vs. Safiq etc. STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C.
9. After closure of PE, separate statement of accused under section 313 CrPC was recorded wherein all the incriminating evidence were put to the accused persons to which they have denied in toto and pleaded false implication in the present matter. They opted not to lead defence evidence.
ARGUMENTS
10. I have heard final arguments put forth by Sh. Narender Yadav, Ld. Substitute Addl. PP for the State and by accused persons themselves.
It was argued by Ld. Substitute Addl. PP that the allegations levelled against the accused persons are of serious nature and the material witnesses namely PW1 Ravi, PW2 Tashi Khandu Rijiju and PW3 Tenzin Tsang have supported the case of the prosecution qua the commission of offence with PW2 and PW3. PW2 and PW3 have also exhibited the recovered mobile phone. Therefore, there is enough evidence on record against accused Safiq to bring home the charge against him under section 411 IPC.
11. Per contra, accused persons have argued that they have been falsely implicated in this case and that is why PW1, PW2 and PW3 have not identified them and have turned hostile qua their identity. Therefore, prosecution has miserably failed to prove the case against accused Safiq under section 411 IPC. It is prayed that they may be acquitted for want of cogent and reliable evidence.
SC No. 2550/2016, FIR No. 67/16, PS Hazrat Nizamuddin Page No. 9 of 15 State Vs. Safiq etc.
13. I have heard the arguments at length and perused the entire record.
FINDINGS
13. Both accused persons have been charged for the commission of offences punishable under Sections 394/325/34 IPC. Accused Safiq has been additionally charged for commission of offence punishable under section 397/411 IPC.
14. The relevant Sections are reproduced as under:
SECTION 397 IPC Robbery, or dacoity, with attempt to cause death or grievous hurt.--If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
SECTION 394 IPC "Voluntarily causing hurt in committing robbery.--If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
SECTION 325 IPC "Punishment for voluntarily causing grievous hurt.--Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, SC No. 2550/2016, FIR No. 67/16, PS Hazrat Nizamuddin Page No. 10 of 15 State Vs. Safiq etc. shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
SECTION 34 IPC "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone".
SECTION 411 IPC "Dishonestly receiving stolen property.-- Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
15. It is a settled law of criminal jurisprudence that a person is believed to be innocent till the guilt is proved against him. This principle is called The Presumption of Innocence. In another words, the accused is entitled to take advantage of reasonable doubt in respect of his crime.
Presumption of Innocence is a re-statement of the rule that in criminal matters the prosecution has the burden of proving guilt of the accused in order to be convicted of the crime of which he is charged.
In Chandrashekhar Vs. State of Himachal Pradesh decided on 06.07.2018 relying on judgment of Data Ram Singh Vs. State of UP passed by the Hon'ble Supreme Court on 06.02.2018, it was held that:
"the freedom of an individual is utmost important and cannot be curtailed specially when guilt if any, is yet to be proved. It is settled law that till such time guilt of a person is proved, he is deemed to be innocent........ A SC No. 2550/2016, FIR No. 67/16, PS Hazrat Nizamuddin Page No. 11 of 15 State Vs. Safiq etc. fundamental postulate of criminal juris prudence is a presumption of innocence meaning thereby that a person is believed to be innocent until found guilty..........
Thus, the inference which is culled out from the above is that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt.
16. In this backdrop, I proceed to delve upon the evidence adduced on behalf of the prosecution.
MATERIAL/EYE WITNESS
17. The prosecution has heavily relied upon the testimony of PW1 Ravi, PW2 Tashi Khandu Rijiju and PW3 Tenzing, who are victims in the present matter. They have deposed that the incident of robbery was committed with them on 26.01.2016 by five-six persons. They have also deposed that they were beaten by those five-six persons by wooden stick. It is stated by PW3 that he was hit on his head from behind due to which he became unconscious. PW2 exhibited his complaint given to the police as Ex. PW2/A. PW1, PW2 and PW3 could not identify the accused persons as the same persons, who had robbed PW2 and PW3. They were the material witnesses, who could have proved the allegations under section 397/394/325/34 IPC against the accused persons but their inability to identify the accused persons, is fatal to the prosecution's case. In absence of any other witness, who can prove the allegations of robbery against the accused persons, PE was closed as remaining formal witnesses could not have proved the allegations under section 394/325/34 IPC and section 397 IPC.
SC No. 2550/2016, FIR No. 67/16, PS Hazrat Nizamuddin Page No. 12 of 15 State Vs. Safiq etc. ALLEGATIONS UNDER SECTION 411 IPC
18. It is alleged against accused Safiq that he was in possession of the robbed property i.e., I phone of victim Tenzing and same was recovered from the possession of accused Safiq upon his personal search. The phone has been recovered from the possession of accused Safiq.
19. It is admitted case of the prosecution that no public person from Shiv Mandir located near the park from where the recovery was affected has been cited as the witness to the recovery. IO could have easily joined the public persons available in the park or in the temple or some passerby during the recovery proceedings. Non examination of any public witness despite their availability casts a doubt on the recovery proceedings done by the IO. Law is settled that non joining of public witnesses despite their availability, an adverse inference would be drawn against the prosecution.
20. It is argued on behalf of State that deposition of PW2 and PW3 have gone unrebutted and resultantly, the recovery of mobile phone from the possession of accused Safiq stands duly proved. I do not find any strength in this argument as it is the duty of the prosecution to prove its case beyond reasonable doubt against the accused. If prosecution is not able to prove that accused persons were involved in the commission of robbery with the complainant and injured, then recovery of case property i.e., mobile phone in absence of any public witness cannot be said to be proved beyond reasonable doubt.
21. In case titled as "Roop Chand Vs. State of Haryana" reported as CC Cases 3 (HC), it was held as that where the police has failed to join SC No. 2550/2016, FIR No. 67/16, PS Hazrat Nizamuddin Page No. 13 of 15 State Vs. Safiq etc. independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected.
22. In the case of "Hem Raj Vs. State of Haryana" AIR 2005 SC 2110, it has been observed that: "The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Nonexamination of independent witness by itself may not given rise to adverse inference against the prosecution. However, when the evidence of the alleged eye witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance".
23. In the case of "Pawan Kumar Vs. the Delhi Administration", 1989 Cr.LJ 127, in which it was observed as follows: "Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while accordingly to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at the crucial time like 07:30 PM when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible from the side of the prosecution is forthcoming for not joining the SC No. 2550/2016, FIR No. 67/16, PS Hazrat Nizamuddin Page No. 14 of 15 State Vs. Safiq etc. Independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least that IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
24. Public witnesses were admittedly not joined in investigation though available. The testimony of official witnesses does not find any corroboration from any independent source. In view of the opinion of this court, the nonjoining of public witness is fatal to the prosecution case against Safiq, particularly when no reasonable explanation has been given by prosecution for not joining public witnesses.
CONCLUSION
25. Thus, in view of the aforesaid findings, there is no hesitation in holding that the prosecution has failed to prove its case beyond reasonable doubt and accordingly, accused persons namely Safiq and Mohd. Anwar Hussain stand acquitted of the charges levelled against them.
26. File be consigned to record room after due compliance.
Digitally signed by DHIRENDRA DHIRENDRA RANA
RANA Date: 2023.02.21
16:03:09 +0530
Dictated and announced in the open (Dhirendra Rana)
Court on 21.02.2023. Addl. Session Judge-FTC-02
(running in 15 pages) (South East), Saket Courts/Delhi
SC No. 2550/2016, FIR No. 67/16, PS Hazrat Nizamuddin Page No. 15 of 15
State Vs. Safiq etc.