Delhi District Court
State vs . Afsal on 28 February, 2015
IN THE COURT OF MS. NEHA: METROPOLITAN
MAGISTRATE03 : (SOUTH EAST) DELHI
STATE Vs. Afsal
FIR No: 291/2000
P. S. Hazrat Nizamuddin
Date of Institution of Case : 07.05.2001
Date on which case reserved : 13.02.2015
for Judgment
Date of Judgment : 28.02.2015
JUDGEMENT :
a) Date of offence : 07.04.2000 to 22.06.2000
b) Offence complained of : 448/380/411/34 IPC
c) Name of complainant : Dr. T. A. Siddiqui
d) Name of accused, : 1. Afsal @ Yasmin their parentage and residence s/o Sh. Mohd. Yamin r/o 53 Nal Nagar Palika Praishad, Amroha.
2. Mohd. Qasim s/o Late Mohd. Yamin r/o 665 Phatak Aziz Abadi Matia Mahal, Delhi.
3. Muzamil Khan @ Guddu FIR no. 291/2000 State Vs. Mohd. Afsal & ors.
PS HND 1 of 19
s/o Late Bismil Khan
r/o T105, Fanna Manzil,
Basti Hazrat Nizamuddin.
4. Abdul Naseem
s/o Late Abdul Qasim
r/o 808, Kamra Bangesh,
Dariya Ganj, Central Delhi.
5. Rakesh Kr. Aggarwal
s/o Late Devraj Aggarwal
r/o C78, Sector49,
Noida201301
6. Rahul Pant
s/o Sh. B. B. Pant
r/o B9, Sector 39,
Noida.
e) Plea of accused : Not guilty
g) Final order : Acquitted
Counsels for the Parties:
Sh. Pradeep Kumar, Ld. APP for the State.
Sh. K. Ansari, Ld. Counsel for all the accused. BRIEF FACTS AND REASONS FOR DECISION:
The case of prosecution in brief is that during 07.04.2000 to 22.06.2000 accused Afsal @ Yasmin, Mohd. Qasim, Mujammil Khan, FIR no. 291/2000 State Vs. Mohd. Afsal & ors.
PS HND 2 of 19 Abdul Naseem, Rakesh Aggarwal and Rahul Pant in furtherance of their common intention committed house trespass at D556, Basement, Main Baoli Gate, Delhi and also committed theft of household articles belonging to complainant from the said premises. Complainant Dr. T. A. Siddiqui made a complaint regarding the incident. Accordingly, FIR No. 291 of 2000 u/s 380/448 Indian Penal Code, 1860 (hereinafter called IPC) was registered at PS Hazrat Nizamuddin. During investigation, accused Muzamil Khan was found in possession of some of the stolen articles.
2. After the completion of the investigation, charge sheet for offence u/s 380/448/411/34 IPC was filed against accused Afsal @ Yasmin, Mohd. Qasim, Muzamil Khan, Abdul Naseem, Rakesh Aggarwal and Rahul Pant. Cognizance of the offence was taken. Copy of charge sheet was supplied to the accused. After hearing the parties, charge for the offence u/s 448/380/34 IPC was framed against all accused to which they pleaded not guilty and claimed trial and separate charge under section 411 IPC was framed against accused Mujammil Khan to which he pleaded not guilty and claimed trial.
3. The prosecution has examined eight witnesses to prove its case.
FIR no. 291/2000 State Vs. Mohd. Afsal & ors.
PS HND 3 of 19
4. PW1 Dr. T. A. Siddiqui is the complainant of the case.
5. PW2 Anwar Ali Hasmi is also alleged to be an eyewitness of the case.
6. PW4 HC Dharamveer Singh is the witness who had handed over copy of FIR and rukka to the IO. SI Vikram Singh had seized telephone bill in his presence vide memo Ex PW4/A.
7. PW5 Ct. Rambhool is also one of the witness had joined investigation with IO during arrest of accused Muzamil Khan and recovery of articles.
8. PW6 Mohd. Akram is also alleged to be an eyewitness of the case.
9. PW7 HC Khalil Ahmed is the witness who joined investigation with SI Vikram Singh at the time of arrest of accused Naseem.
10. PW8 Ct. Ashok is the witness who had also joined investigation with the IO.
11. PW9 Retd. SI Bikram Singh is the IO of the case. Retd. SI Bikram Singh has deposed that on 23.06.2000, he was posted as SI at PS Nizamuddin. On that day, he had received one complaint of Sh. T FIR no. 291/2000 State Vs. Mohd. Afsal & ors.
PS HND 4 of 19 A Siddiqui, on which he prepared rukka Ex PW9/A. Thereafter, he alongwith one staff /Constable and complainant went to the spot where he prepared site plan Ex PW9/B. Thereafter, he searched for the accused persons but could not find any.
12. He has further deposed that in the month of July 2000, he alongwith Ct. Ashok Kumar were doing investigation of the present case. During investigation, accused Mohd. Afsal and Qasim were arrested from Hazrat Nizamuddin. The arrest memo of accused Qasim and Afsal are Ex.PW8/A and Ex PW8/B. Personal search of accused was also conducted vide memo Ex PW8/C and Ex PW8/D. He had also recorded disclosure statement of accused Qasim and Mohd. Afsal which are Ex PW8/E and Ex PW8/F. The accused were sent to lockup after medical examination on that day and were produced in the court on the next day.
13. He has further stated that in the month of August, 2000 accused Guddu @ Mohd. Muzamil was arrested from Basti Hazrat Nizamuddin vide memo Ex PW1/F. His personal search was also conducted vide memo Ex PW1/C. He also recorded disclosure statement which is Ex PW5/A. Accused also pointed towards place of incident and he prepared pointing out memo which is Ex PW1/I. From FIR no. 291/2000 State Vs. Mohd. Afsal & ors.
PS HND 5 of 19 one workshop at Basti Hazrat Nizamuddin, few stolen articles i.e gadda, chadar and charpai were recovered and seizure memo was prepared which is Ex PW1/I.
14. He has also stated that on 08.10.2000, he arrested accused Mohd. Naseem from Basti Hazrat Nizamuddin vide arrest memo Ex PW7/A. His personal search memo was also conducted vide memo Ex PW7/B. He recorded disclosure statement of accused which is Ex.PW7/C. He also prepared pointing out memo which is Ex PW7/D. Thereafter on 17.01.2001, Rakesh Aggarwal and Rahul Pant were arrested from Basti Nizamuddin. Arrest memo is Ex PW1/G and Ex PW1/H. Their personal search was conducted and memo was prepared which is Ex PW1/D and Ex PW1/E. He recorded their disclosure statement which is Ex PW8/L and Ex PW8/M. He also prepared pointing out memo at their instance which is Ex PW9/C and Ex PW9/D.
15. He has also stated that he had seized copy of rent agreement Mark A and copy of telephone bill Mark D vide seizure memo which is Ex PW4/A. The complainant had also given list of articles comprising of two pages which is Ex PW1/B. The disclosure statement of accused Mohd. Qasim, Afsal and Muzamil Khan @ FIR no. 291/2000 State Vs. Mohd. Afsal & ors.
PS HND 6 of 19 Guddu were recorded vide memo Ex PW8/G, PW8/H and PW8/I. He had recorded statement of witnesses during investigation and prepared the chargesheet.
16. There was no witness examined as PW3 due to inadvertent mistake and PW1 TU Siddiqui has been named as PW3 during his further examination on 18.01.2010.
17. Ld. counsel for the accused submitted that accused do not dispute genuineness of registration of FIR and register no. 19. In view of the submissions, examination of duty officer and MHCM were dispensed with. PE was closed on 17.10.2014.
18. After PE, accused were examined under Section 313 Cr.P.C and their statement was recorded separately, wherein they denied all incriminating evidence against them. They did not examine any witness in their defence. Therefore, the matter was fixed for final arguments.
19. Final arguments were addressed on behalf of Ld. Defence Counsel and Ld. APP for the State.
20. Ld. APP for the State has argued that the prosecution has been able to prove its case beyond reasonable doubt. Complainant and other FIR no. 291/2000 State Vs. Mohd. Afsal & ors.
PS HND 7 of 19 prosecution witnesses have proved that the accused in furtherance of their common intention have criminally trespassed in the house of complainant and they have also removed the household articles belonging to complainant and that Mohd. Muzamil Khan was found in possession of some of the stolen articles belonging to complainant. It is also argued on behalf of State that the testimony of prosecution witnesses leaves no doubt that the accused had committed the offences with which he has been charged with.
21. Ld. Counsel for accused has argued that the complainant has taken contradictory stands and his testimony is not reliable. It is argued that the testimony of the prosecution witness is not reliable as it is not explained as to how the accused persons have been arrested without identification by any eyewitness in this case. Ld. Counsel for accused has also argued that the prosecution has failed to prove its case beyond reasonable doubts. Therefore, benefit of doubt may be given to accused and they may be acquitted.
22. I have considered the submission of Ld. APP for the State and Ld. Defence Counsel and perused the entire material on record.
23. The perusal of testimony of prosecution witnesses would show FIR no. 291/2000 State Vs. Mohd. Afsal & ors.
PS HND 8 of 19 that two alleged eye witnesses examined by the prosecution have turned hostile.
24. PW2 Anwar Ali Hasmi, an alleged eyewitness, has deposed that he knows only that Mr. Siddiqui was residing in the basement. He had good relations with Dr. Siddiqui. This witness was declared hostile by the prosecution and during cross examination by the Ld. APP for the State, the witness has denied that in the month of April 2000, Dr. Siddiqui proceeded to Allahabad and he came back in May 2000 and found that accused persons with the help of Rakesh Aggarwal and Rahul had removed the articles after breaking the lock of the door. The witness has also denied that on 28.01.1998 Dr. Siddiqui was residing at D 556, Main road, Bawali gate, Hazrat Nizamudin.
25. The witness has been cross examination by the Ld. Defence Counsel and during cross examination, the witness has been stated that he cannot say whether Dr. T. A. Siddiqui had vacated the premises in the month of March 2000. He further has stated that he cannot say for how long Dr. Siddiqui remained as tenant in the premises.
26. PW6 Mohd Akram is also alleged to be an eyewitness of the case. However the witness has also not supported the case of FIR no. 291/2000 State Vs. Mohd. Afsal & ors.
PS HND 9 of 19 prosecution. During crossexamination by Ld. APP for the State, the witness was denied having made any statement to the police during investigation.
27. Now I will examine whether testimony of complainant is reliable and trustworthy.
28. PW1 Dr. T. A. Siddiqui is the complainant of the case. He has deposed that he went to Allahabad on receiving a call that his mother in law was ill. He immediately went to Allahabad and came to know that his mother in law was seriously ill. She was admitted to hospital and doctor advised for her operation of gall bladder. He alongwith his family remained there. After two months, when he came back to Delhi, he found that the lock of his house was broken and a new lock was there. On enquiry he came to know his house was sold. He contacted Mr. Yaseen, landlord who stated that he do not have any premises in that building. Thereafter, he reached to PS where he requested police to lodge a complaint against the culprit. Police asked regarding any proof of ownership/possession of said premises. He brought duplicate telephone bills and bank A/c statements pertaining to his house. Then, he made an application/complaint Ex.PW1/A. FIR no. 291/2000 State Vs. Mohd. Afsal & ors.
PS HND 10 of 19
29. Complainant has further deposed that police came to his premises. He broke open the lock of the said premises and entered, found nothing was there and partition walls were removed. His all household articles i.e. Dewan bed, folding bed, two T.V. (B & W and colour), Sony Fax machine, national panasonic telephone set, MTNL phone set, two big suitcases, one big hand bag, all kitchen utensils, one small suitcase, one Hero cycle, all household articles, two gold rings & one gold chain, two nosepins, all their expensive cloths, silver anklets of his wife, big photo frames (expensive), all important documents, files and degrees of Medical College, passports, heavy Almirah were removed. Due to the lapse of time he can not tell all the articles. Some articles were recovered by the IO i.e. Folding bed, mattress, pillow covers and bed sheet in a very bad state.
30. Complainant / PW1 during his cross examination has stated "I do not recollect when I went to see my ailing mother in law nor can I tell as to when I returned... I can not tell as to in which year or month I had gone to Allahabad to see my ailing mother in law." The complainant has further stated that he has taken the premises on rent in the year 1996 from Mohd. Yamin. The witness during cross examination has further stated that he has stated in his complaint Ex. FIR no. 291/2000 State Vs. Mohd. Afsal & ors.
PS HND 11 of 19 PW1/A that he came to know from his neighbour Mohd. Rahish and Akram who had informed him that the premises had been broken and goods have been removed.
31. He has admitted during cross examination that after the registration of FIR, when the police came to the spot, he broke open the lock of the said premises in the presence of the police officials and entered into the premises.
32. The complaint of complainant with the police is Ex. PW1/A. The complainant in his complaint to SHO HN Din has alleged that he is residing in basement since 28.01.1998 as tenant and Rs. 2000/ is a monthly rent. He has also got telephone connection in his name and has got account opened in his name for the said address. On 01.04.2000 he went to his house Allahabad and locked his two rooms in which his articles were kept. On 23.06.2000, he found two new locks on the rooms of his possession. When he entered the room through the roshandan, he found that all the articles were missing. He has alleged that Mohd. Afsal @ Yasin, son of land lord with his brother Mohd. Qasim and friend Naseem and Guddu and other friends have broken the lock and have removed the articles. FIR no. 291/2000 State Vs. Mohd. Afsal & ors.
PS HND 12 of 19
33. Perusal of the complaint to police would show that in the said complaint he has not stated as to how he had come to know that Afsal with Qasim, Naseem and Guddu, etc had removed his household articles from the premises. During examination as PW1, the complainant has stated that he has come to know from Mr. Rahis and Akram that premises had been broken and goods have been removed.
34. Perusal of testimony of complainant would show that he is also not an eyewitness to the alleged trespass or alleged theft being committed at his premises. He has filed his complaint to the police naming the accused only on the basis of information given by some Mohd. Rahish and Akram. Any Akram or Rahish have not been examined by the prosecution to prove that the accused have committed house trespass in the basement allegedly belonging to complainant or that they have stolen the house hold articles from the premises of complainant.
35. Further it is necessary to mention that the complainant has taken contradictory stands during his examination as PW1 and during court enquiry conducted by Ld. Predecessor of this court.
36. During court enquiry on 15.03.2010, the complainant has stated FIR no. 291/2000 State Vs. Mohd. Afsal & ors.
PS HND 13 of 19 that he was on rent in the premises but in the year 1998, the entire building were sold and he told the father of accused that he want to run dispensary in the said building and he offered to purchase the said building. Asif offered to sell the basement of the building and he executed Power of Attorney in his favour because father of accused namely Yamin was not well in those days. The witness during court enquiry has stated that he can produce the documents of ownership to this Court. However, on 21.04.2010, the witness stated that he does not have any title documents and proof of ownership with respect to the property in question. Thereafter, suddenly on 04.08.2011, the witness has produced title documents including GPA and agreement to sell in respect of property number D556 which are mark X.
37. During cross examination, witness has stated that "It is correct that I had not told to the police at that time that I had purchased any portion of D556. It is correct that I had not told to the police that the portion in which the theft was committed was my purchased portion."
38. During cross examination, the complainant has stated that no accused was arrested in his presence. He has not given the parentage and other description of the accused persons in his complaint Ex. FIR no. 291/2000 State Vs. Mohd. Afsal & ors.
PS HND 14 of 19 PW1/A or any subsequent statement. He has further stated that he can not recollect as to who had told him the names of accused persons mentioned in his complaint. All these discussions herein above show that the statement of complainant Dr. T A Siddiqui is not reliable and trustworthy.
39. Perusal of testimony of prosecution witnesses would shows that there are no eyewitness to the alleged trespass being committed by the accused persons. There are also no eyewitness to the alleged theft committed in the basement of the complainant. In these circumstances, I hold that the prosecution has failed to prove beyond reasonable doubt that accused Afsal, Md. Qasim, Muzamil Khan, Abdul Naseem, Rakesh Aggarwal and Rahul had committed criminal trespass in the premises belonging to complainant and that they had removed the household articles from the said premises.
40. It is also alleged by prosecution that on 22.09.2000 Musamil Khan had taken to police official to one workshop at Basti Hazrat Nizamuddin where he got recovered one gadda, iron cot and one bed sheet and disclosed that these are the some articles which were taken from the house of complainant after breaking the locks. FIR no. 291/2000 State Vs. Mohd. Afsal & ors.
PS HND 15 of 19
41. PW8 Ct Ashok is one the recovery witness examined by the prosecution. PW8 had deposed that on 22.09.2000 he had joined investigation with the IO and during investigation, accused Guddu @ Muzamil Khan who was in PS was taken to one workshop at Basti HN Din where he got recovered one gadda, iron cot and one bedsheet and disclosed that these are some of the articles which were taken from the house after breaking the lock. The seizure memo of articles was prepared in his presence which is Ex. PW1/I and accused was arrested and his disclosure statement was recorded.
42. During cross examination, PW8 has stated that the shop owners and residents of the locality has refused to join the investigation. He cannot tell their names and addresses. He has admitted that no proceedings was conducted by the IO against the public person who refused to join the investigation.
43. PW8 Ct. Ashok during cross examination has further stated that before proceeding for investigation from PS alongwith accused Guddu, the IO had asked many persons/shopkeepers/resident of the locality to join in the investigation but none had joined. He does not recollect if IO had recorded statement of any person residing or working near the place of recovery. He has admitted that that the workshop were on FIR no. 291/2000 State Vs. Mohd. Afsal & ors.
PS HND 16 of 19 public way. No photography of the recovery was done.
44. The IO who had conducted the entire investigation and filed the charge sheet has been examined as PW9. IO during his examination has deposed that during investigation when the recovery was effected and accused Guddu @ Muzamil Khan was arrested, complainant Sh. T A Siddiqui was present with them. Sh. T A Siddiqui has also joined investigation at the time of arrest of other accused persons.
45. On the contrary, the complainant has stated during his cross examination that he does not know from where the recovery was effected and he was told by the police that the recovery was effected from the house of accused Rakesh Aggarwal located in Nizamuddin. He has admitted that he does not as to who were joined by the police at the time of recovery. He was called in the police station and shown the recovered articles and thereafter police obtained his signatures on the memo prepared in respect of said recovery.
46. During cross examination, the complainant was shown the list of articles given by him to the police and after going through the list of articles, witness has stated that he has not mentioned about charpai and folding bed in the list. The TIP of the recovered articles was not got FIR no. 291/2000 State Vs. Mohd. Afsal & ors.
PS HND 17 of 19 conducted by the IO during investigation and there is nothing to show that the alleged recovered articles belongs to the complainant. Admittedly, the complainant has not mentioned the iron cot in the list of his stolen articles and it is not clear whether allegedly recovered iron cot or gadda or bed sheet belongs to complainant or not. The articles are very common articles like bedsheet, gadda etc. and similar articles are easily available in the market.
47. There are contradictions in the testimony of complainant and IO concerned. The IO had stated that the recovery was effected in the presence of complainant and the accused were also arrested in his presence. However, the complainant was denied that accused were arrested or recovery were made in his presence.
48. It is alleged that recovery was made from one basement at Basti Hazrat Nizamuddin. However, admittedly neither any nearby shopkeeper or passerby or nearby resident has been called to join the investigation/recovery. However, the IO had not made any public person witness to the recovery despite the fact that there are many houses/shops near the place of recovery. This court cannot loose its sight of the fact that though recovery has been effected in a public area but no independent witness was joined in the investigation. Even, FIR no. 291/2000 State Vs. Mohd. Afsal & ors.
PS HND 18 of 19 efforts have not been made by the IO to join the public witnesses. In the entirety of the circumstances, I hold that prosecution has failed to establish its case beyond all reasonable doubts as recovery itself becomes doubtful.
49. In view of discussion herein above, this court is of the opinion that the prosecution has failed to prove beyond reasonable doubt that accused Muzamil Khan was found in possession of some of the stolen articles. Accordingly, benefit of doubt is given to accused. All accused are acquitted of the charges U/s 448/380/34 IPC & Section 411 IPC leveled against them. Ordered accordingly.
Pronounced in the open Court (Neha)
today on 28th February 2015 MM03 (South East)
Saket, New Delhi
FIR no. 291/2000 State Vs. Mohd. Afsal & ors.
PS HND 19 of 19