Delhi District Court
State vs . Muzahid on 14 January, 2019
SC/326/17
State Vs. Muzahid
IN THE COURT OF SHRI DEEPAK JAGOTRA,
DISTRICT & SESSIONS JUDGE, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
SC/326/17
CNR No: DLNE010098332016
State Versus Muzahid
S/o Zahid
R/o H.No.K272, New Seelampur,
Delhi
FIR No.858/17
PS New Usmanpur
under Section 392/34 & 397 IPC
Date of institution of case : 14112017
Date of reserving the case for Judgement : 04012019
Date of passing of Judgment : 14012019
JUDGMENT
1. The present case has been filed on behalf of State whereby prosecution is seeking conviction of accused Muzahid, who along with his associate (not arrested) robbed Dharmender Kumar of his FIR No.858/17 PS New Usmanpur Page No. 1/20 under Section 392/34 & 397 IPC SC/326/17 State Vs. Muzahid mobile phone make Samsung golden colour and while committing robbery, accused Muzahid had used blade/ paper cutter, for the offences punishable under Section 392/34 & 397 of the Indian Penal Code (hereinafter shall be referred as the "IPC").
2. I have heard both the sides and meticulously gone through the record of the case.
3. Learned Chief Public Prosecutor for the State has submitted that prosecution has successfully proved its case beyond reasonable doubt against the accused and further prays that accused may be convicted for the offences charged against him.
4. On the other hand, it has been submitted on behalf of the accused that he has been falsely implicated in this case and the prosecution has miserably failed to prove its case beyond reasonable doubt against the accused and further prays for the acquittal of the accused.
5. The facts of the case in concise format are that on 1308 2017 at 7 pm in front of Theka Sharab, Shastri Park, EBlock, Shastri FIR No.858/17 PS New Usmanpur Page No. 2/20 under Section 392/34 & 397 IPC SC/326/17 State Vs. Muzahid Park side, accused Muzahid along with his associate (not arrested) had robbed Dharmender Kumar of his mobile phone make Samsung golden colour and while committing robbery, accused Muzahid had used a blade/ paper cutter.
6. The detailed facts of the case shall be appreciated at the relevant stages of the judgment.
7. Before proceeding further, it would be appropriate to recapitulate the sequence of events which are as under;
The present case has been committed for trial and the charge sheet was received by the Court on 14112017. Charge was framed against the accused on 29112017 for the offences punishable under Section 392/34 & 397 IPC. The accused has pleaded not guilty and claimed trial for the offences charged against him.
8. In order to prove its case, the prosecution has examined as many as 6 witnesses.
9. Statement under Section 313 Cr.P.C. of the accused was recorded on 13082018.
FIR No.858/17 PS New Usmanpur Page No. 3/20 under Section 392/34 & 397 IPC SC/326/17 State Vs. Muzahid
10. In his defence, no witness has been examined by the accused.
11. It is pointed out that the entire case shall be scrutinized and analyzed keeping an eye on the settled provisions of law and judicial precedents.
ANALYSIS OF PROSECUTION EVIDENCE OCCULAR EVIDENCE
12. The prosecution in order to prove its case has brought in the witness box complainant Dharmender Kumar as PW1. Before the Court, he has stated that on 13082017 at about 56 pm, he along with his friend Ajay was present near Shastri Park Liquor Shop and after consuming momos were returning home at Shastri Park and his friend Ajay stopped for urination and he proceeded ahead while receiving a call on his mobile phone. He has further stated that somebody snatched his mobile phone from behind and he turned back and raised alarm addressing his friend and his friend also turned FIR No.858/17 PS New Usmanpur Page No. 4/20 under Section 392/34 & 397 IPC SC/326/17 State Vs. Muzahid towards him while running. He has further stated that he saw attentively and found that his mobile phone had fallen on the ground and in the mean time, people gathered there and he narrated the facts to those persons. He has further stated that accused was apprehended by the public and he informed the police at 100 number, police arrived there and police had taken him, his friend and accused to the police station. He has further stated that police recorded his statement Ex.PW1/A on their own and he identified his signature on it at point A.
13. PW2 Shri Ajay Kumar has appeared in the witness box and has stated that on 13082017, his friend Dharmender was coming after eating momos and he was robbed by two persons came on a motorcycle and his friend had called him at spot through phone and when he reached he told the abovesaid facts to him. He has further stated that incident had not taken place in his presence. He has further stated that when he reached there, one person was present with his friend, who was overpowered by his friend and his friend told him that FIR No.858/17 PS New Usmanpur Page No. 5/20 under Section 392/34 & 397 IPC SC/326/17 State Vs. Muzahid he was the person, who had snatched his mobile phone and his mobile phone was recovered from his possession. He has further stated that police was called and police arrived there and took them to police station.
14. PW3 HC Patil Kumar has stated that on 13082017, he was posted at PS New Usmanpur and on receiving DD No.82B by SI Sita Ram, he accompanied him to the spot and they found complainant and his friend Ajay present there, who produced accused before the IO along with the robbed mobile phone. He has further stated that on search of accused by the IO, one paper cutter was recovered from the right pocket of his pant and complainant Dharmender had told them that accused had snatched his mobile phone from him after putting the said paper cutter / blade on him.
RECOVERY OF WEAPON OF OFFENCE
15. PW3 HC Patil Kumar in his testimony has stated that on search of accused by the IO, one paper cutter was recovered from the right pocket of pant.
FIR No.858/17 PS New Usmanpur Page No. 6/20 under Section 392/34 & 397 IPC SC/326/17 State Vs. Muzahid DEPOSITION OF OTHER FORMAL PROSECUTION WITNESSES
16. Besides these witnesses, prosecution has also examined other formal witness to prove as follows;
S.No. Name of witness To prove
1. PW4 Zahid Superdarinama Ex.PW4/A
2. PW5 W/Ct. Shanta Rawat DD No.82B Ex.PW5/A
3. PW6 HC Sarfraj Ahmed Endorsement on rukka Ex.PW6/A and FIR
Ex.PW6/B
CUMULATIVE EFFECT OF THE ENTIRE EVIDENCE
17. From the evidence, it is evinced that PW1 Dharmender Kumar on 13082017 at about 56 pm had consumed momos along with his friend Ajay near Shastri Park Liquor Shop and they both were returning home. His friend Ajay stopped for easing himself whereas he started walking ahead. He was receiving a phone call on his mobile phone. All of a sudden, someone came from behind and snatched his mobile phone. He turned back and raised alarm calling his friend. His friend also turned towards him while running. In the FIR No.858/17 PS New Usmanpur Page No. 7/20 under Section 392/34 & 397 IPC SC/326/17 State Vs. Muzahid mean time, he saw his mobile phone had fallen on the ground. People gathered there had questioned him as to what had happened to which he told the facts to them. He has further stated that accused present before the Court was apprehended by the public and he informed the police at 100 number. Police reached at the spot and he along with his friend and accused were taken to police station. Police had seized his mobile phone and recorded his statement on their own which is Ex.PW1/A. He has further stated that he could not see as to who had snatched his mobile phone. Since he had not implicated the present accused in particular, learned Chief Public Prosecutor had requested to cross examine him which was allowed.
18. In the cross examination carried out by learned Chief Public Prosecutor, PW1 has denied the suggestion that on the day of incident, two persons came on a motorcycle which was stopped near him and the pillion rider put a blade on him and snatched his phone forcibly. He has further denied the suggestion that when the offenders tried to run on motorcycle, he caught the motorcycle from behind and FIR No.858/17 PS New Usmanpur Page No. 8/20 under Section 392/34 & 397 IPC SC/326/17 State Vs. Muzahid motorcycle got imbalanced and fell on the ground and then, he apprehended the pillion rider with the help of his friend Ajay Kumar whereas other associate of accused managed to escape on the motorcycle. He has further denied the suggestion that police reached at the spot and then, he handed over the custody of accused to the police and that on cursory search of accused, one paper cutter was recovered from the right side pocket of the pant of accused. He has further denied the suggestion that he had given any statement Ex.PW1/A to the police. He has further denied the suggestion that paper cutter was recovered in his presence and its sketch was prepared in his presence and then, he signed the same. He has also denied the suggestion that motorcycle bearing no.DL7SBX8640 was noted by him and the said motorcycle was recovered at the instance of accused from nearby. He has also denied the suggestion that he has settled the matter with the accused out of the Court and therefore, he is tactfully retracting from his previous statement with a view to save the accused. He has also denied the suggestion that he is deliberately FIR No.858/17 PS New Usmanpur Page No. 9/20 under Section 392/34 & 397 IPC SC/326/17 State Vs. Muzahid suppressing the true facts and deposing falsely.
19. PW1 Dharmender Kumar is also cross examined on behalf of the accused and he further reiterated that accused present before the court had not snatched his mobile phone on the day of incident.
20. PW2 Shri Ajay Kumar had given a different story as that of PW1 Dharmender Kumar and his version is that on 13082017, his friend Dharmender was coming after eating momos and he was robbed by two persons, who came on a motorcycle. His narration is that PW1 had called him at the spot and informed him the said facts. He has clearly stated that incident had not taken place in his presence. However, when he reached there, one person was present there and PW1 Dharmender Kumar told him that his mobile phone was recovered from that person, who snatched his phone. He has clearly stated that he cannot identify the person, who robbed the mobile phone from his friend Dharmender.
FIR No.858/17 PS New Usmanpur Page No. 10/20 under Section 392/34 & 397 IPC SC/326/17 State Vs. Muzahid
21. Learned Additional Public Prosecutor for the State has cross examined the witness and the witness has denied the suggestion that on 13082017, when he along with his friend Dharmender Kumar were coming back after eating momos at about 7 pm, when they reached in front of theka at Shastri Park, two persons came on a motorcycle and pillion rider had snatched mobile phone from Dharmender as Dharmender was talking to someone at that time on his mobile phone and the said person snatched the mobile phone of Dharmender Kumar after putting blade on him. He has denied the suggestion that after snatching the mobile phone, they both tried to run away from there on their motorcycle and he along with Dharmender caught the motorcycle and the person, who robbed the mobile phone was overpowered by them. He was confronted with his earlier statement Mark A to which he denied having stated those facts. He has further denied the suggestion that other person, who was driving the motorcycle ran away from there after leaving his motorcycle and the mobile phone of Dharmender was recovered from the person, who FIR No.858/17 PS New Usmanpur Page No. 11/20 under Section 392/34 & 397 IPC SC/326/17 State Vs. Muzahid was overpowered by them. He has also denied the suggestion that police reached at the spot and on search of accused, one paper cutter was recovered from him or that the sketch of said paper cutter/ blade was prepared by the police and same was sealed in a cloth parcel and was taken into possession. He has also denied the suggestion that motorcycle was also taken into possession by the police. He has also denied the suggestion that he had put his signatures on sketch of blade Ex.PW1/C, seizure memo of blade Ex.PW1/D and seizure memo of motorcycle Ex.PW1/E at the spot. He has also denied the suggestion that he is intentionally not deposing true facts as he has been won over by the accused or that accused present before the Court is the same person, who robbed the mobile phone from Dharmender Kumar after putting paper cutter on him or that incident of robbery had occurred in his presence or that he is intentionally not identifying the accused being won over by him.
22. In the cross examination carried out on behalf of FIR No.858/17 PS New Usmanpur Page No. 12/20 under Section 392/34 & 397 IPC SC/326/17 State Vs. Muzahid accused, he has further reiterated the fact that no incident had taken place in his presence. He has also admitted that his signatures were obtained on blank papers by the police.
23. It is culled out from the statement of PW1 Dharmender Kumar and PW2 Ajay in pith and substance that accused Muzahid was not the person, who had committed any robbery of mobile phone belonging to PW1 Dharmender Kumar. Firstly, both PW1 and PW2 gave different account of events when PW1 on the one hand says that at the time of incident PW2 Ajay was present with him whereas PW2 Ajay says that he was called at the spot through phone by PW1.
24. In a Criminal Justice System, it is of foremost importance that identity of the accused is established beyond reasonable doubt. As a matter of fact, identification of the accused is of prime importance in a criminal case to fasten the guilt of the accused beyond reasonable doubt.
25. Both of them spoke on the same lines that accused present before the Court is not the person, who had committed any robbery on FIR No.858/17 PS New Usmanpur Page No. 13/20 under Section 392/34 & 397 IPC SC/326/17 State Vs. Muzahid complainant Dharmender Kumar by putting paper cutter on him. Therefore, both of them miserably failed to identify the accused to be the perpetrator of the crime. Both of them have not at all supported the case of the prosecution that either the mobile phone or paper cutter was recovered from accused Muzahid. They have also failed to identify the weapon of offence i.e. paper cutter which was allegedly used by the accused. They have also not proved that motorcycle bearing no.DL 7SBX 8640 was recovered at the instance of accused.
26. The motorcycle which was used in the crime belonged to PW4 Zahid, who is the father of accused Muzahid. Though he has identified his motorcycle Ex.P1 but the said motorcycle is not at all connected with the crime as the prosecution case was that the same was being driven by the other associate of accused Muzahid and not by him. It is also important to note that PW4 Zahid nowhere has stated that on the day of incident, he had given the said motorcycle to his son for driving.
27. With this, we now moved on to the police witness and the FIR No.858/17 PS New Usmanpur Page No. 14/20 under Section 392/34 & 397 IPC SC/326/17 State Vs. Muzahid only material witness examined by the prosecution is PW3 HC Patil Kumar whose version is that on 13082017, he went to the spot on receipt of DD No.82B by SI Sita Ram and they found complainant Dharmender Kumar and his friend Ajay present there, who had produced accused before the IO along with robbed mobile phone. He has stated that the search of accused was taken by IO and one paper cutter was recovered from the right pocket of his pant and Dharmender had told them that accused had robbed mobile phone from him after putting the said paper cutter on him. He also found one motorcycle bearing Registration no.DL7SBX 8640 which was lying at the spot and same was taken into possession vide seizure memo Ex.PW1/E. He has identified the mobile phone Ex.P1 and paper Ex.P2.
28. On scrutiny of statement of public witnesses PW1 Dharmender Kumar and PW2 Ajay Kumar juxtaposed the police witness PW3 HC Patil Kumar, there is absolutely no connection between the two. There is not even slenderest of support and FIR No.858/17 PS New Usmanpur Page No. 15/20 under Section 392/34 & 397 IPC SC/326/17 State Vs. Muzahid corroboration of the testimony of police official by the public witnesses. There is complete mismatch between the statement of public witnesses and that of police official. As a matter of fact, nothing has surfaced on the testimonies of all the witnesses.
29. In view of conflicting and divergent statement of star witnesses and police officials, it would not at all be fair and justifiable to fasten the guilt on the accused.
30. At this stage, it would be helpful to have a look at Section 397 IPC. The essential ingredients of offence under Section 397 are as follows:
(1) Accused committed robbery or dacoity;
(2) While committing such robbery or dacoity the accused
(a) used a deadly weapon;
(b) caused grievous hurt to any person;
(c) attempted to cause death or grievous hurt to any
person.
31. The star witnesses PW1 Dharmender Kumar and PW2 Ajay Kumar have nowhere stated that firstly, mobile phone was FIR No.858/17 PS New Usmanpur Page No. 16/20 under Section 392/34 & 397 IPC SC/326/17 State Vs. Muzahid snatched by the accused and secondly, the accused had snatched the mobile phone by using paper cutter on the complainant. They have miserably failed to identify the accused in the Court as well. In the cross examination carried out on behalf of accused, both PW1 and PW2 have clearly stated that no incident has taken place and the accused has not snatched the mobile phone by using paper cutter.
Thus, no incriminating evidence worth the name has come on record.
32. It is a case where the testimony of police official is not at all supported and corroborated by the public witnesses thereby making the case of the prosecution highly doubtful.
33. In a case titled as Raj Kumar Singh Vs. State of Rajasthan reported in (2013) 5 SCC 722, the Hon'ble Apex Court has been pleased to observe as under;
"Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved and "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place FIR No.858/17 PS New Usmanpur Page No. 17/20 under Section 392/34 & 397 IPC SC/326/17 State Vs. Muzahid of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" and "must be"
true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases while keeping in mind the distance between "may be" true and "must be" true, the court must maintain vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a FIR No.858/17 PS New Usmanpur Page No. 18/20 under Section 392/34 & 397 IPC SC/326/17 State Vs. Muzahid reasonable doubt is not imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."
34. In a case where there is total conflict in the testimonies of public witnesses and the police witness, it would not be safe to convict the accused and he is entitled to realm of benefit of doubt.
35. In view of the foregoing reasons and discussion, the prosecution has failed to prove its case beyond reasonable doubt against accused Muzahid for the offences punishable under Section 392/34 & 397 IPC and hence, the case put forth by the prosecution must fail and fall down.
CONCLUSION
36. Keeping in view the totality of the facts and circumstances of the case, the entire case of the prosecution crumbles down. Prosecution has completely failed to bring home the charge under Section 392/34 & 397 IPC against accused Muzahid. Accused Muzahid stands acquitted. His Bail Bond is cancelled and surety is discharged.
FIR No.858/17 PS New Usmanpur Page No. 19/20 under Section 392/34 & 397 IPC SC/326/17 State Vs. Muzahid
37. Muzahid is directed to furnish fresh Bail Bond in the sum of Rs.10,000/ (Ten Thousand) with one surety in the like amount which shall remain in force for a period of six months in pursuance of Section 437(A) Code of Criminal Procedure.
38. File be consigned to Record Room.
DEEPAK
ANNOUNCED IN THE OPEN COURT
ON 14th JANUARY, 2019 JAGOTRA
Digitally signed by
DEEPAK JAGOTRA
Location: KARKARDOOMA
COURTS, DELHI
Date: 2019.01.14 16:23:01
+0530
(DEEPAK JAGOTRA)
DISTRICT & SESSIONS JUDGE
NORTH EAST DISTRICT
KARKARDOOMA COURTS, DELHI
FIR No.858/17
PS New Usmanpur Page No. 20/20
under Section 392/34 & 397 IPC