Delhi District Court
Fir No:202/06; Ps Gokul Puri; U/S ... vs . Sajid & Others on 30 October, 2010
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FIR NO:202/06; PS GOKUL PURI; U/S 392/397/34 IPC; STATE VS. SAJID & OTHERS
IN THE COURT OF SH. B.S. CHUMBAK:ADDL. SESSIONS JUDGE
DELHI
Case ID Number 02402R0317282006
Session Case No. 46/08
Assigned to Sessions 03/08/06
Arguments heard on 30/10/10
Date of order 30/10/10
FIR NO. 202/06
Police Station GOKUL PURI
Under Section 392/397/34 IPC
Out come of the judgment ACQUITTED
STATE VS 1. SAJID
S/O MOHD. SHAHID
R/O D-67, GALI NO.9,
MOHAN PURI ILLAHI
PS BHAJAN PURA, DELHI
2. KASIM @ KADIR @ MULLA
S/O NOOR HASAN
R/O E-203, 25 FT. ROAD,
CHAND BAGH, DELHI (P.O.)
3. SHAMIM
S/O MOHD. SALIM
R/O F-430 GALI NO.15,
CHAND BAGH, DELHI
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FIR NO:202/06; PS GOKUL PURI; U/S 392/397/34 IPC; STATE VS. SAJID & OTHERS
4. SHAHID @ MUSTFA
S/O YUNUS
R/O MOHALLA SHAH CHANDAN
YAMIN WALI MASJID,
CHANDPUR, DISTT. BIJNOR (U.P)
Present: Sh. S.K. Dass, Ld. Addl. PP for state.
Sh. Sunil Kumar Advocate on behalf of accused Shahid.
Sh. S.K. Thakur Advocate on behalf of accused Sajid and
Shamim.
JUDGMENT
1. On 19.03.06 a case u/s 392/397/34 IPC was registered at PS Gokul Puri vide FIR no.202/06 on the basis of statement of Sh. Sudhir Kumar Gupta s/o Nand Kishore Gupta r/o Jai Durga Store, Maha Laxmi Enclave, Karawal Nagar Road, Delhi against unidentified persons.
2. Brief facts arising out of this case are that on 19.03.06 at about 8:45 p.m an information with regard to commission of docaity at Durga Kiryana Store was received vide DD no. 45B. On receipt of this information ASI Rajmal alongwith Ct.. Rajiv reached at the spot i.e Jai Durga Store Karawal Nagar Road, near Shiv Vihar Pullia. SI Arjun Singh was also present at the spot, statement of complainant Sudhir Kumar Gupta was recorded wherein he stated as under : Page 2/15 3
FIR NO:202/06; PS GOKUL PURI; U/S 392/397/34 IPC; STATE VS. SAJID & OTHERS "On 19.3.06 he alongwith his son Pulkit Gupta were present at his shop and attending the customers, in the meantime at about 8:00 p.m three four persons entered to his shop having countrymade katta in their hands. They all forcibly removed Rs. 30,000/- Hawra Bidi ki parchiya, five packets of Gold Flake Cigrette, one jar filled up with Badam giri, one jar filled up with Kaju, one jar filled up with pista and 50 packets of Shikhar, Dilbagh and Raj Darbar Gutakhe from his shop. They all extended threat of keeping quite on the point of country made katta and after removing the aforesaid articles they all run away from the spot towards Babu Nagar. All the persons were about 25/30 years old and he can identify all the accused if shown to him."
3. After registration of the case investigation was initiated, site plan was prepared, crime team and photographer were also called at the spot. During the course of investigation and on 14.04.06 accused Sajid s/o Mohd. Shahid alongwith other co -accused were arrested in a case u/s 399/402 IPC r/w section 25 of Arms Act registered vide FIR no. 267/06. Two country made kattas were recovered from the possession of accused Shamim and during course of interrogation in that case he made a disclosure statement wherein he disclosed that he alongwith Mustafa and Kasim @ Mullaha and other associates committed the Page 3/15 4 FIR NO:202/06; PS GOKUL PURI; U/S 392/397/34 IPC; STATE VS. SAJID & OTHERS offence of docaity on 19.3.06 at Jai Durga Store. Both the accused were arrested, place of offence was got identified by them, site plan was prepared at the instance of accused Shamim case property i.e 9 packets of Gold Flake Cigrette, 14 pouches of Raj Darbar and seven pouches of Shikhar, six pouches of Dilbagh Gutakhe were recovered from the room of accused Shamim. 100 Gram pista kept in a jar on which slip of Jai Durga Store was affixed was also recovered, 195 coins of Rs.1 and 2 denomination were also recovered and seized with the seal of AS. Test identification prade of accused Sajid was conducted on 24.4.06 wherein he refused to take part in the proceedings, on 27.4.06 the real name of accused Mustafa was revealed as Shahid and was arrested on 22.5.06 in another case u/s 186/353/307/34 IPC r/w section 25 and 27 of Arms Act registered vide FIR no. 352/06. He was interrogated and his disclosure statement was also recorded wherein he disclosed that he handed over the robbed coin to his landlady and at his instance 50 coins of Rs.2/- denomination and 110 coins of Rs.5/- denomination were recovered from the house of Smt. Mariyam Khatoon w/o Safiq Ahmed Page 4/15 5 FIR NO:202/06; PS GOKUL PURI; U/S 392/397/34 IPC; STATE VS. SAJID & OTHERS which were taken in possession and sealed with the seal of AS. Mariyam Khatoon was also arrested u/s 411 IPC. TIP of accused Shahid @ Mustafa was fixed for 30.5.06 but he refused to take part in the TIP proceedings. Another accused was identified as Kasim @ Kadir @ Mullaha s/o Noor Hasaan but he could not be arrested and proceeding u/s 82/83 Cr.P.C were executed against him. Statement of witnesses were recorded and after completion of all the necessary investigation challan u/sec. 173 Cr.P.C was presented against all the accused persons for the offence u/sec. 392/397/411/34 IPC r/w sec. 25/27 Arms Act in the court of Ld. MM.
4. Ld. MM after taking cognizance for the offence supplied the copies of the challan to the accused as provided u/s 207 Cr.P.C and committed the case to the court of Sessions and on turn allocated to this court for trial. Thereafter case was fixed for arguments on charge.
5. After hearing arguments and taking into consideration the material available on record accused Mariyam Khatoon was discharged and charge for the Page 5/15 6 FIR NO:202/06; PS GOKUL PURI; U/S 392/397/34 IPC; STATE VS. SAJID & OTHERS offence u/s 392/397/34 IPC was framed against accused Sajid, Shamim and Shahid by the then Ld. ASJ vide order dated 06.01.07 to which they pleaded not guilty and claimed trial and, thereafter case was fixed for prosecution evidence.
6. Sudhir Kumar Gupta (complainant) appeared as PW1, Pulkit Gupta s/o Sudhir Kumar Gupta as PW2, Ct.. Sushil Kumar as PW3, ASI Satyadev Singh as PW4, Ct. Rajiv as PW5, Ct.. Raj Kumar as PW6, Ct.. Kundan Singh as PW7, Sh. R.K. Singh, Ld. MM as PW8, Ms. Neerja Bhatia Ld. MM as PW9, L. Ct.. Pramila as PW10, Ct. Harender Kumar as PW11 and SI Om Pal Singh as PW12.
7. Brief testimony of all the PW's are as follows:
(i) PW1 deposed that on 19.3.06 he was present at his kiryana shop with his son Pulkit Gupta. At about 8 p.m three/four boys entered into his shop and one boy remained outside the shop. All the three boys who entered into his shop were having country made pistols in their hands. They extended threat upon him and his son and asked them to sit down in the corner of the shop.Page 6/15 7
FIR NO:202/06; PS GOKUL PURI; U/S 392/397/34 IPC; STATE VS. SAJID & OTHERS Out of them one boy removed Rs.25,000/- / Rs.30,000/- from cash box and some slips of Hawara Biri. They also took one jar of Kaju, one jar of badam giri and one jar of Pista. They also took some cigarette packets of gold flake and some dilbag guthaka and handed over these items to other boys who were standing outside the shop and thereafter they all run away towards Babu Nagar. He informed the PCR and got his statement recorded which is Ex. PW1/A. He could not identify those boys who had committed robbery in his shop as there was darkness at that time. No electricity was there in the area and he was working in candle light. On seeing the accused in the court he totally failed to identify the accused persons who had committed docaity in his shop. He also stated that neither he had identified the accused during the investigation at PS nor during the TIP proceedings. While deposing so he turned hostile and Ld. Addl PP for state after seeking permission from the court cross examined the witness and during his cross examination he reiterated his testimony as submitted by him during examination in chief and specifically stated that on 27.4.06 he had gone to PS Gokul Puri and three boys were shown to him but he had not identified those boys as robbers. He also denied that he had identified two accused on 27.4.06 and also disclosed Page 7/15 8 FIR NO:202/06; PS GOKUL PURI; U/S 392/397/34 IPC; STATE VS. SAJID & OTHERS their names as Sajid and Shameem. While deposing so he has confronted from his statement Ex. PW1/B and PW1/C.
(ii) PW2 corroborated the testimony of PW1 to the effect that on 19.3.06 at about 8:00 p.m three boys entered into his shop and taken away Rs.25,000/- / 30,000/- cash from the cash box, some slips of Hawara Bidi, one jar of badam giri and pista, some cigarette packets and guthaka from their shop but he failed to identify any of the accused person who had committed the robbery/docaity in his shop.
iii) PW3 is the photographer. He only deposed that on 19.3.06 he alongwith incharge crime team went to Jai Durga Store, Karawal Nagar Road, Near Shiv Vihar Tiraha, Delhi and on asking of IO he took three photographs of the shop Photographs are Ex. PW3/A, B and C and negatives of the same are Ex. PW3/D, E and F.
iv) PW4 is the duty officer who had recorded the FIR bearing no.202/06 on the basis of rukka sent by ASI Arjun Singh through Ct. Rajiv. Copy of the FIR is Ex. PW4/B. Page 8/15 9 FIR NO:202/06; PS GOKUL PURI; U/S 392/397/34 IPC; STATE VS. SAJID & OTHERS
v) PW5 deposed that on 19.3.06 on receipt of information vide DD no. 45B he alongwith ASI Rajmal reached at Mahalakashmi Enclave, Shiv Vihar, Jai Durga Store at about 9 p.m. SI Arjun Singh had already reached there. Owner of Jai Durga Store (PW1) told them that on the point of gun 3-4 boys committed robbery in his house. SI Arjun Singh prepared rukka and handed over the same to him for registration of the case. He reached at PS at about 10:30 p.m and handed over the rukka to duty officer (ASI Satyadev), who registered the case and handed over the original rukka and copy of FIR to him which he transmitted to SI Arjun Singh.
vi) PW6 deposed that on 14.4.06 SI Om Pal Singh received a secret information that some bad elements would gather at D-2 Gali, Dayal Pur and on receipt of this information he alongwith SI Om Pal Singh, HC Kishan Lal, Ct. Harender, Ct. Naushad and three/four other constables reached there and took the position on different places. On reaching there they saw three boys coming from the side of Dayal Pur and another two boys were found coming from the side of Mustafabad. They all gathered near the wall and starting conversing with each other. HC Kishan Lal was sent there in civil dress as shadow Page 9/15 10 FIR NO:202/06; PS GOKUL PURI; U/S 392/397/34 IPC; STATE VS. SAJID & OTHERS witness to over hear the conversation and to give signal, if so desires. Accordingly, he heard the conversation and gave a signal. On seeing the police official all the boys started moving from there but they were over powered and were apprehended by them. He alongwith SI Om Pal caught hold of a boy whose name later on revealed as Sajid and on his search one loaded kutta was recovered from the right pocket of his pant alongwith one live cartridge. HC Kishan Lal and Ct.. Harender apprehended another boy whose name was revealed as Shamim and from his possession a loaded katta was recovered and from the remaining three boys one buttondar knife was recovered and their names were revealed as Taslim, Haroon and Salim. SI Om Pal prepared the rukka and got the case registered vide FIR no. 266/06 PS Gokul Puri under the appropriate provisions. SI Vijay Kumar Gupta reached there for further investigation. He interrogated the accused persons and during interrogation accused Sajid and Salim disclosed regarding commission of robbery in this case. Disclosure statement of these boys were recorded and they disclosed that they alongwith their associates Shamim, Mustafa and Kasim committed robbery on the point of katta and knife. They robbed Rs.30,000/- guthaka, cigarettes and some cashew nuts and pista from that shop.
He further deposed that on 15.4.06 SI Arjun Singh IO of this case interrogated Page 10/15 11 FIR NO:202/06; PS GOKUL PURI; U/S 392/397/34 IPC; STATE VS. SAJID & OTHERS accused Sajid and Shamim and at their instance pointing out memo was prepared vide memo Ex. PW6/A. Disclosure statement of accused Sajid and Shamim is Ex. PW6/D and E was also recorded in his presence. He further deposed that he alongiwith IO Arjun Singh and three accused persons namely Sajid and Shamim went to the house of F-430, Chand Bag, Gali no.1 and at the instance of accused Shamim 9 cigarette packets , 14 pouches of Raj darbar Gutak, 7 pouches of Shikhar and 6 pouches of Dilbag Guthaka and plastic jar containing 100 gm guthaka were recovered from a box kept in a corner of a room of accused Shamim. Slip of Jai Durga was also affixed on the jar. 195 coins of denomination of Rs.1 and 2 were also recovered and sealed with the seal of AS vide seizure memo Ex. PW6/B. He further deposed that accused persons took them at B-67, Mohan Nagar, Gali no. 1 and from there accused Sajid took out Cigarette packets make gold flake, six pouches of Raj Darbar Guthaka, 15 pouches of Shikhar Guthaka and 6 pouches of Dilbag Guthaka and one plastic jar containing about 100 gms cashew nuts and slip of Jai Durga Store was affixed on the jar. These articles were recovered from an iron almirah kept in the ground floor of the said house. The aforesaid properties were seized vide memo Ex. PW6/C. He also identified accused Sajid and Shamim in the court. He also identified accused Shahid @ Mustafa in the court. He further deposed that on 22.5.06 also he Page 11/15 12 FIR NO:202/06; PS GOKUL PURI; U/S 392/397/34 IPC; STATE VS. SAJID & OTHERS joined the investigation of this case with IO/SI Om Pal Singh. Accused Shahid @ Mustafa was arrested in a case u/s 307/186/353/34 IPC registered at PS Gokul Puri. He was interrogated and also made a disclosure statement which is Ex. PW6/X. He also identified the case property when shown to him which is collectively Ex. P1. He also identified the plastic jar containing pieces of cashew nuts Ex. P.2 and another jar containing some pieces of pista Ex. P3. 9 packets of gold flake cigarette, 14 pouches of Raj darbar guthaka, 7 pouches of Shikhar Guthaka, 6 pouches of Dilbagh Guthaka are collectively Ex. P4. He also identified the coins 195 in numbers which are collectively Ex. P.5.
During his cross examination he reiterated his testimony as submitted by him during examination in chief.
vii)PW7 is a formal witness. He only recorded DD no.45B copy of which is EX. PW7/A.
viii)PW8 proved the factum of fixing the TIP proceedings of accused Sajid and Shamim in which they both refused to join the proceedings and proceedings are Ex. PW8/A and B respectively.
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FIR NO:202/06; PS GOKUL PURI; U/S 392/397/34 IPC; STATE VS. SAJID & OTHERS
ix) PW9 proved the factum of fixing TIP proceedings for 26.5.06 of accused Shahid. He refused to join the TIP proceedings and proceedings are Ex. PW9/C.
x) PW10 is again a formal witness. She joined the proceedings at the time of arrest of accused Mariyam Khatoon who has already been discharged.
xi) PW11 corroborated the testimony of PW6 with regard to arrest and recovery of robbed articles.
xii)PW12 is the witness of recovery or two loaded dessi katta from the possession of accused Sajid and Shamim in a case registered vide FIR no. 267/06 u/s 399/402 r/w sec. 25 of Arms Act. Thereafter case was fixed for examination of accused u/s 313 Cr.P.C.
8. Arguments on the point of examination of accused u/s 313 Cr.P.C heard. Ld. counsel for accused submitted that initially case was registered on the basis of statement of PW1 who had seen all the accused persons at the time of commission of offence but he totally failed to identify any of the accused person rather specifically stated that none of the accused person present in the court ever entered into his shop and removed Rs.30,000/- in Page 13/15 14 FIR NO:202/06; PS GOKUL PURI; U/S 392/397/34 IPC; STATE VS. SAJID & OTHERS cash and other articles as discussed above from his shop. PW2 is the public witness who had also turned hostile and also failed to identify any of the accused person who had committed offence on the date, time and place of incident. The articles which are allegedly recovered at the instance of accused person during the investigation of this case are also not got identified by any of the witness and they no where stated that articles which were produced by the IO in the court belonging to their own shop and in such circumstances it cannot be said that any incriminating facts are brought on record against any of the accused person.
9. In view of the contentions of Ld. counsel for accused I carefully perused the testimony of all the witnesses discussed above and is the considered view that no incriminating fact is brought on record against any of the accused person, therefore, examination of accused u/s 313 Cr.PC is dispensed with.
10. Accordingly, accused Sajid s/o Mohd. Shahid, Shamim s/o Mohd. Salim and Shahid @ Mustfa s/o Yunus are acquitted for the offences as alleged against them u/sec. 392/397/34 IPC.
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FIR NO:202/06; PS GOKUL PURI; U/S 392/397/34 IPC; STATE VS. SAJID & OTHERS
11. The bail bond/ surety bond furnished by the accused persons shall remain in force till the expiry of six months and all the accused are further directed to appear before the appellant court, if they are required to appear before the appellant court in view of the provision of Section 437A Cr.P.C. File be consigned to Record Room with the direction to revive the file as and when accused Kasim @ Kadir @ Mulla/PO be rearrested.
(B.S. CHUMBAK) ASJ-3/North East District KKD/Delhi Announced in the open court Delhi Dt. 30th October 2010.
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