Delhi District Court
State vs . Mohd. Irfan Etc. Page No.1/44 on 28 September, 2018
IN THE COURT OF MS. SUNENA SHARMA, ADDITIONAL
SESSIONS JUDGE-03, SOUTH DISTRICT, SAKET COURTS, NEW
DELHI
SC No7064/16
Unique ID No.02403R0097772010
FIR No.325/09
U/s: 395/397/34 IPC
Police Station: Mehrauli
State
Vs.
1. Mohd. Irfan
s/o Sh. Subrati Khan
R/o F-56, Shahid Nagar,
Ghaziabad, UP
2. Baldev s/o Sh. Ram Babu
R/o Quarter No.310/5
Village Shahjahanpur,
Factory Estate,
District Bareily,UP
3. Shahabuddfin s/o Sh. Bundu Khan
R/o Village Chidawak,
PS Gulawati,
District Bulandshere, UP
4. Rafique s/o Sh. Salim
R/o 226, D-Block, Gali No.1,
Sangam Vihar,New Delhi
....... Accused
Date of Committal :26.03.2010
Arguments Concluded : 18.09.2018
Judgment pronounced on :28.09.2018
JUDGMENT
1. Vide this judgment, I shall decide the SC No.7064/16 (Old No.85/14), arising out of FIR No.325/09, PS Mehrauli, lodged in connection with an incident of robbery committed in a house at Chattarpur.
State Vs. Mohd. Irfan etc. Page No.1/44 FIR No.325/092. Briefly stated the facts of the case as per charge sheet are that on 16.06.2009, at 5:46 am, a DD no. 52 regarding a theft in the house was received from PCR in the police station and same was marked to HC Subhash Chand who alongwith IO SI Gajraj Singh reached at the spot and recorded the statement of complainant Bala Ram s/o Sh. Raghu Ram. Complainant gave his statement to the effect that he was living at house no.370, near Durga Ashram, Chattarpur and his son Suraj with his family had gone to Goa. On 15.06.2009, complainant with his wife Laxmi Devi was sleeping in a room while their maid servant Deepa was sleeping in another room. At about 3:45 am, somebody knocked the door of the complainant upon which, complainant opened the door and four young boys aged about 20-25 years forcibly tress-passed into their room. They threatened them and confined them in a room where later on, their domestic help Deepa also came and she was also made to sit under threat. Thereafter, said boys with the help of screw driver broke open the locks of almirah and took away cash and jewellery containing two gold kadas, six bangles, four gold rings, two pairs of gold tops, one diamond set. Thereafter, one of the boy kept guarding them while the other boys went to the room of complainant's son and after breaking open the lock of said room, entered inside the room and after breaking the almirahs of said room, they took out cash and jewellery even from there. The details of cash and jewellery were given by complainant's son on his return. Thereafter, the robbers took the complainant, his wife and his domestic help to the room of his children by intimidating them with the help of knife and pistols and there they tied them. The thin tall boy was carrying a knife in his hand and boy with short height was carrying a pistol. Thereafter, they left State Vs. Mohd. Irfan etc. Page No.2/44 FIR No.325/09 the room after bolting the same. After sometime, complainant, his wife and his domestic help somehow managed to free themselves. Thereafter, they came out of the room but, they could not find any guard outside the room. Thereafter, complainant asked the domestic help to call the other servant from the other room but she found the servants being also confined in a room. The domestic help freed them too and thereafter, called complainant's nephew Satish Chawla who was residing in the neighbourhood. Satish Chawla later on called police.
2.1 On the aforementioned statement of complainant, FIR u/s 395/397 IPC was got registered and investigation was handed over to SI Gajraj. During investigation, crime team inspected the ransacked house of the complainant, took the photographs of crime scene, lifted chance prints from the spot. IO prepared the site plan at the instance of the witness, collected the piece of cloth with which the hands of the occupants of the house were tied up and took them into police possession. IO made all the efforts to arrest the accused and to recover robbed articles but, could not succeed. On 24.11.2009, SI Sukhram Pal from PS Vasant Kunj South gave information vide DD no.5A regarding FIR no.45/2009 registered at PS Vasant Kunj South and arrest of four accused namely Irfan, Rafiq, Shahbuddin and Baldev Raj and also informed that said accused had made disclosure about their involvement in the commission of the crime of present FIR. All the said four accused were stated to be in JC in said FIR. Pursuant to said information, SI moved the court concerned for production warrant of said accused. On his request, accused were produced on 30.11.2009 in the court of Ld. ACMM and after interrogating the accused, IO arrested them and they were remanded State Vs. Mohd. Irfan etc. Page No.3/44 FIR No.325/09 to Judicial custody by the court. Thereafter, IO moved application for conducting TIP of said accused but, they all refused to join the TIP proceedings. However, later on during PC remand, the witnesses identified all the four accused. During PC remand, accused were interrogated and they made their disclosure statements wherein, accused Mohd. Irfan and Rafiq made the disclosure to the effect that out of the looted amount they had got the share of 4.5 lac each and with said money, they jointly purchased the house no. 226/D1, Sangam Vihar in the name of Rafiq's mother. While, accused Baldev disclosed that he had got Rs.1 lacs from the looted money and purchased one old motorcycle bearing no. DL-6SQ-2802 which was recovered at his instance and was lying in the malkhana. Accused Shahbuddin disclosed that his share of looted money was Rs.4.5 lacs which he used for re-payment of the loan which he had taken from his native Nazid @ Mota. Accused persons further disclosed that the looted jewellery was sold out to one goldsmith Pappu Verma and from the sale proceeds, they had bought the weapons. As per charge sheet, said goldsmith was also arrested in FIR no.41/09, PS Vasant Kunj and from his possession, certain nose pins were recovered which were allegedly prepared from the melted gold of the looted jewellery. However, for lack of sufficient evidence said person was not arrested and his name was kept in coloumn no.12 of the charge sheet.
2.2 During investigation, IO also sent the chance prints collected from the spot with the finger impressions of the accused to Finger Print Bureau (FPB), Malviya Nagar for the purpose of comparison and finger print of accused Shahbuddin got matched with the chance prints collected from the spot.
State Vs. Mohd. Irfan etc. Page No.4/44 FIR No.325/093. After completing the investigation, IO filed the charge sheet before the court of Ld. ACMM, South on 25.02.2010 upon which, cognizance was taken and after compliance of Section 207 Cr.P.C., Ld. ACMM committed the case to the court of Sessions vide order dated 11.03.2010 and same came to be assigned to Ld. Predecessor court on 26.03.2010.
4. Vide order dated 28.04.2010, charge for offence u/s 394/397/34 IPC were framed against all the accused to which they pleaded not guilty and claimed trial.
Prosecution Evidence
5. In order to prove its case prosecution has examined 23 witnesses namely PW1 Smt. Laxmi Devi, PW2 HC Bhagwan Singh, PW3 Ct. Anand, PW4 HC Subhash Chand, PW5 Bala Ram, PW6 Suraj Prakash, PW7 Deepchand, PW8 Inspector Jai Prakash, PW9 Mahanand Jha, PW10 ASI Satbir Singh, PW11 Faizan Elahi, PW12 Ms. Deepa, PW13 Sh. Deepa Gaba, PW14 ASI Laabh Singh, PW15 HC Ramesh Chand, PW16 Mandai Kumar, PW17 Vijay Kumar Jha, PW18 K.N. Singh, PW19 Retired SI Gajraj Singh, PW20 Saurabh Pratap Singh Laler, PW21 Inspector Ishwar Singh, PW22 Retired ASI Attar Singh and PW23 Sh. Parmanand Jha. For the sake of convenience and ready reference, said witnesses have been categorised under the following head.
A) Public witnesses
1) PW1 Smt. Laxmi Devi
2) PW5 Bala Ram
3) PW6 Suraj Prakash
4) PW7 Deep Chand
5) PW9 Mahanand Jha
6) PW11 Faizan Elahi State Vs. Mohd. Irfan etc. Page No.5/44 FIR No.325/09
7) PW12 Ms. Deepa
8) PW13 Deepak Gaba
9) PW16 Mandai Kumar
10) PW17 Vijay Kumar Jha
11) PW23 Sh. Parmanand Jha B) Formal witnesses
2) PW10 ASI Satbir Singh
3) PW20 Sh. Saurabh Pratap Singh Laler (Ld. Sr. Civil Judge)
4) PW22 Retired ASI Attar Singh C) Police witness from Crime team
1) PW2 HC Bhagwan
2) PW3 Ct. Anand D) Police witnesses of investigation team of FIR No. 45/09
1) PW8 Jai Prakash
2) PW14 ASI Laabh Singh
3) PW21 Inspector Ishwar Singh E) Member of investigation team of present FIR
1) PW4 HC Subhash Chand
2) PW15 HC Ramesh Chand
4) PW19 Retired SI Gajraj F) Expert witnesses
1) PW18 K. N. Singh Public witnesses
6. PW1/Smt. Laxmi Devi is the complainant's wife, who is the eye witness of the offence. She in her examination in chief, deposed that in the night of 15/16.06.2009, she was sleeping with her husband. Their maid Deepa was sleeping in her room. At about 4:00 am, four robbers entered into their house and went to the room of her maid Deepa. They took her alongwith them and thereafter knocked the door of her room. She further deposes that she opened the door State Vs. Mohd. Irfan etc. Page No.6/44 FIR No.325/09 and found four persons (i.e. accused persons present in the court and correctly identified) standing with Deepa and they asked the key of almirah. PW1 told them that she was not having the key as same was with her son. Thereafter, those robbers started breaking almirahs and committed theft of cash and jewellery. PW1 further testified that robbers were armed with iron rods and pistol and they used the iron rod to break open the lock. Further that, accused persons tied her, her husband and maid Deepa before committing robbery and also threatened them by showing them weapons which they were having.
7. PW5/Sh. Bala Ram is the complainant and the owner of the house where the robbery was committed. He in his examination in chief deposed that on 16.06.2009, while they were sleeping in their house, five persons entered into their house by breaking open the door and woke them up and gave them beatings. Those persons ransacked the house and robbed cash, jewellery from their house. Further that, they also tied them and make them sit in a corner. PW5 further deposed that his wife and maid servant were also in the house who were also tied and were given beatings. He deposed further that none of those robbers was present in the court. Police took his statement as Ex. PW5/A. 7.1 As PW5 was resiling from his previous statement on the point of identification of accused persons, he was cross examined by Ld. Addl. PP. During his cross examination, he denied the suggestion that all accused persons present in the court were the same robbers who committed robbery in their house on 16.06.2009 or that he was not able to identify them due to his old age and out of fear. He further denied the suggestion that he was deposing falsely on the point of State Vs. Mohd. Irfan etc. Page No.7/44 FIR No.325/09 identification of accused persons.
8. PW6/Suraj Prakash is the son of complainant, who was away to Goa on the date of alleged incident. As per his version on 16.06.2009, while he was in Goa, a robbery took place at their farm house. He came back upon hearing the news in the evening and found that cash around 10-15 lacs was robbed alonwith jewellery articles. Further that, he handed over list of robbed jewellery articles as PW6/A to the police.
9. PW7/Sh. Deep Chand deposes that he was involved in the sale of house no.226, Block D, Gali No.1, Sangam Vihar. The seller and buyer of said house were Muslim. The said house was purchased by accused Rafiq's (correctly identified) mother for a sum of Rs. 8,36,000/-. PW7 did not know from where accused arranged money for payment of said house. PW7 further deposed that he signed the documents regarding sale deed as a witness. He again said that he put his thumb impression at point A on the sale documents of said property Ex. PW7/A collectively (14 pages) and payment was made in his presence. PW7 could not identify the other accused persons.
9.1 As PW7 was resiling from his statement on the point of identification of accused persons, he was also cross examined by Ld. Addl. PP. During his cross examination, he stated that he could not identify any other person by name of Irfan due to weak eye sight. He could not say that accused Irfan present in the court was also present alongwith Rafiq when deal was struck. He denied the suggestion that he was not identifying aaccused intentionally being won over by them.
State Vs. Mohd. Irfan etc. Page No.8/44 FIR No.325/0910. PW9/Mahanand Jha is also one of the material witnesses as he was also residing in complainant's house at Chatarpur on the fateful day. As per his version, he was residing there since the last 10 years and working as a mason. As per his version, on 15.06.2009 again said on 16.06.2009, he was sleeping alongwith his brother. Door of room was open because electricity was not there. PW9 could not tell the exact time but, at about 1:00 am, 3-4 persons entered into the room and apprehended them and thereafter, cloth was put in their mouth and their hands and legs were tied with a cloth. PW9 further deposed that thereafter he was instructed by the assailants to lay down on the floor of the room in overturned condition and they also threatened them not to raise voice otherwise they would be kill them. Further that, thereafter, all said boys left from the room except one for keeping watch on them. PW9 further testified that thereafter, said person untied their hands and legs and took them to adjacent room where 7 more persons including two ladies and two children were already confined. Thereafter, all of them were confined in the room and room was bolted from the outside. Further that, they were also threatened not to raise any alarm else they would be killed. Further that, in the morning, lady servant of landlord came there and opened the door from outside and untied their legs and hands. In the meantime, landlady alongwith her husband also came there and they all started crying. PW9 further deposed that he could not identify the accused as he could not see the faces of assailants as there was no light at that time.
10.1 As PW9 also resiled from his statement, he was also cross examined by Ld. Addl. PP. During his cross examination, PW9 State Vs. Mohd. Irfan etc. Page No.9/44 FIR No.325/09 admitted that he had stated to the police in his statement Ex. PW9/A that when he was lying in the room in tied condition and at that time, accused persons had brought gardner Narayan and one guard in tied condition and put them in their room. But, PW9 categorically denied the suggestion that he was not identifying the accused persons deliberately as he was won over by them.
11. PW11/Faizan Elahi deposes that he was having house no.226, Sagam Vihar and sold the same to accused Rafiq (present in the court and correctly identified) for a sum of Rs.8,34,000/- against sale documents Ex. PW7/A bearing his signature.
12. PW12/Deepa is the maid servant of complainant. She in her examination in chief, deposed that she did not know the name of persons with whom she was working as a maid servant about 3-4 years ago, however, a theft had taken place in that house. As she was sleeping, robbers woke her up and took her to the room of aunty where she was made to sit. Thereafter, they robbed the articles of house. PW12 correctly identified the accused persons present in the court.
13. PW13/Deepak Gaba, is the auto dealer from whom accused Baldev Raj allegedly purchased a bike with robbed money. He in his deposition, deposed that he had been running his shop in the name and style of Gaba Auto Deals at Shop no.15/29 at Geeta Colony, Delhi since 2006 for sale purchase of two wheelers on commission basis. As per his version, on 29.09.2009, one Baldev Raj (present in the court and correctly identified) had come to his shop and purchased a bike no.DL-6S-Q-2802 from his shop against delivery State Vs. Mohd. Irfan etc. Page No.10/44 FIR No.325/09 receipt Ex. PW13/A issued by him in favour of Baldev Raj at the time of delivery of bike. At that time, PW13 had taken photocopy of Identity proof (Driving license) Mark X of purchaser Baldev Raj which was annexed with said delivery receipt. PW13 further deposed that he had received a sum of Rs.16,000/- from Baldev Raj.
13.1 On showing one cash receipt Ex.PW13/B, PW13 stated that it was issued by him in favour of Baldev Raj at the time of delivery of motorcycle to him on 29.09.2009. He deposed that both the aforementioned exhibits were in his hand writing. PW13 had also delivered RC, Sale letter to purchaser Baldev Raj at the time of delivery of aforesaid motorcycle. On showing original RC on file, witness correctly identified the same as mark Y. On showing signed sale letters (Form 29 and 30), witness identified the same as mark Z1, Z2 and Z3. On showing Insurance of the aforesaid vehicle, witness stated that he had also delivered Insurance Certificate Mark AA to the purchaser Baldev Raj.
14. PW16/Mandai Kumar deposes that on 15.06.2009, he was present on his duty as a guard at H.No.370, Chatterpur, Delhi from 8 p.m to 8 a.m. At about 4 a.m, five persons came there and locked him in the room meant for servants. The offenders came to the spot by covering their faces and they also covered his (PW16's) face with a piece of cloth. The maid servant of the house opened the latch of the door of the room in which he was confined by the offenders. He further deposes that in the same morning of the incident, police officials reached there and also made inquiries from him and he (PW16) narrated the incident in detail to them. As per PW16, he had joined the said house as a guard around 15 days prior to the incident.
State Vs. Mohd. Irfan etc. Page No.11/44 FIR No.325/0914.1 As said witness was not coming up with the complete facts, he was cross examined by Ld. APP. During his cross examination, he admitted that incident occurred at about 4 am on 16.06.2009 but, he said that he did not recollect that the name of maid servant was Deepa.
15 PW17/Vijay Kumar Jha deposes that on 16.06.2009, he was residing at village Chhatarpur near Tivoli Garden. It was a farm house and there were 8-10 rooms and in one of those rooms he was residing. At about 2.30-3am, while he was sleeping in the room, 2-3 persons entered in his room, they tied his hands and mouth with a torn piece of bed sheet. PW17 was left in that condition in the room and those 2-3 persons went outside the room. He deposes further that after sometime, those persons brought his brothers, who were living in the adjacent room and tied their hands and mouth as well and left them also with him in the said room. After some time, those 2-3 persons brought one servant of said farm house to his room and left him also after tying his hands and mouth, in same room and after closing the door from outside, they went out. PW17 further deposed that in the morning, the said room was opened by the maid of farm house. PW17 further deposed that he could not identify those 2-3 persons as the lights of his room were off at that time and he had not seen their faces due to darkness. Police made inquiries from him and he narrated the aforesaid facts to the police.
16. PW23/Sh. Parmanand Jha deposed that on 15.06.2009, when he was residing with his brother Mahanand in a room at house at Chattarpur, the number of said house, he did not remember. The State Vs. Mohd. Irfan etc. Page No.12/44 FIR No.325/09 said room was taken on rent. It was very hot on the said night, therefore, they were sleeping by keeping the door open. He further deposed that after 02:00am (night), some persons entered into the room gagged his mouth and of his brother Mahanand. They also tied their mouth with the piece of cloth and also covered their eyes. He further deposed that they were locked in the room. In the morning, other servants of the owner of farmhouse came and opened door and released them. He further deposed that he could not identify any one of those persons, who entered into their room and tied them as it was dark in the room.
16.1 Even in his cross examination by Ld. Addl. PP, PW23 testified that he could not identify said persons as they had covered his eyes with cloth and his mouth was also gagged with some cloth.
Formal witnesses
17. PW10/ASI Satbir Singh is also a formal witness. He deposed that on the intervening night of 15/16.09.2009, he was posted as DD writer in PS Mehrauli. On that day, at about 5:46 am, he received an information from police control room regarding theft in house no. 370, near Durga Ashram, Chattarpur, New Delhi and he recorded said information vide DD no.52A in DD register as Ex. PW10/A and sent the same to HC Subhash through Ct. Rampal for taking necessary action.
18. PW20/Shri Saurabh Pratap Singh Laler is Ld. Sr. Civil Judge, Karkardooma Courts, Delhi who recorded the TIP proceedings. As per his deposition, on 01.12.2009, he was posted as MM South, an application Ex.PW20/A dated 30.11.2009 for TIP of four accused State Vs. Mohd. Irfan etc. Page No.13/44 FIR No.325/09 persons namely Rafique s/o Salim, Shahabuddin @ Shabbu s/o Bundu, Mohd. Irfan s/o and Baldev Raj @ Ballu s/o Ram Babu was marked to him by the court of Ms. Kiran Bansal, the then Ld. ACMM Patiala House Courts. He (PW-20) fixed the date for TIP on 04.12.2009 at 2.00 pm. The said application Ex.PW20/A bore his signature at point A. Accordingly, on 04.12.2009, he reached at Jail No.4, Central Jail, Tihar, New Delhi, where IO SI Gajraj Singh alongwith witnesses met him outside the gate. Witnesses were identified by the IO. Thereafter, Assistant Jail Superintendent Gyan Singh produced the accused namely Rafique, Irfan, Baldev one by one and he identified said accused. PW20 proved on record the TIP proceedings of four accused as Ex. PW20/B (Rafiq), Ex. PW20/D (Mohd. Irfan) and Ex. PW20/F (Baldev). PW20 also proved his certificate regarding correctness of their TIP proceedings as Ex. PW20/C (Rafiq), Ex. PW20/E (Mohd. Irfan) and Ex. PW20/G (Baldev).
18.1 After conducting TIP proceedings at Jail No.4, PW20 went to Jail No.3, Central Jail, Tihar New Delhi, where IO SI Gajraj Singh alongwith witnesses again met him outside the gate. Witnesses were identified by the IO. Thereafter Assistant Jail Superintendent Jai Singh produced accused Shahabuddin son of Bundu Khan and identified him. He (PW-20) inquired from the accused about his willingness to join the TIP, but said accused also refused to participate in TIP by assigning same reason that his photographs were clicked at PS Vasant Kunj. He recorded his statement in this regard. The TIP proceedings for TIP of accused Shahabuddin son of Bundu Khan are proved as Ex.PW20/H, while the certificate regarding correctness of the proceedings as Ex.PW20/I. He further deposed that the TIP proceedings were sealed in an envelope with his seal and on the State Vs. Mohd. Irfan etc. Page No.14/44 FIR No.325/09 application of IO Ex. PW20/J, copy of the TIP proceedings were supplied to the IO.
19. PW22/Retd. ASI Attar Singh was the duty officer who recorded the present FIR. As per his version, on 16.06.2009, he was posted as ASI at PS Mehrauli and working as duty officer from 8.00 AM to 4.00 PM. At about 9.30 AM, on receipt of rukka from HC Subhash sent by SI Gajraj Singh, he got registered FIR no. 325/09 as Ex.PW22/A. After registration of FIR, he made the endorsement on the original rukka as Ex.PW22/B. After registration of FIR, he handed over original rukka and copy of FIR to HC Subhash.
Police witnesses from Crime Branch
20. PW2/HC Bhagwan Singh is the finger print expert. As per his version, on 16.06.2009, he had visited the spot i.e. house no. 370, Village Chattarpur and lifted two chance prints, one from the handle of fridge and another from battery of mobile phone which was lying on the sofa. His detailed report in this regard is Ex. PW2/A. Further that, the chance prints were sent to finger print bureau for further development.
21. PW3/Ct. Anand is the photographer. As per his version, on 16.06.2009, he alongwith crime team visited the spot and took six photographs of the ransacked house. He had brought said photographs and negatives and proved the same on record as Ex. PW3/1 to Ex. PW3/6 and negatives as Ex. PW3/7 (colly).
Police witnesses of investigation team of FIR No. 45/09
22. PW8/Inspector Jai Prakash is the member of investigation State Vs. Mohd. Irfan etc. Page No.15/44 FIR No.325/09 team of FIR no.45/09, PS Vasant Kunj. He deposed that on 14.11.2009, accused persons namely Irfan, Shahbuddin, Baldev Raj and Rafiq present in the court (correctly identified) were arrested in his presence in case FIR no.45/09 of PS Vasant Kunj and arms were recovered from them. He further deposed that accused persons also made disclosures vide memo Ex. PW8/A, Ex. PW8/B, Ex. PW8/C and Ex. PW8/D, wherein they admitted their involvement in present case FIR no.325/09. PW8 also signed the documents of recovery and sketches as Ex. PW8/E to Ex. PW8/L.
23. PW14/ASI Laabh Singh deposed that on 14.11.2009, he was posted as Head Constable in PS Vasant Kunj South. On that day, he had joined the investigation in case FIR No.45/09 PS Vasant Kunj South with Insp. Ishwar Singh SHO and Insp. Jai Prakash. They alongwith HC Devender, HC Harjeet Singh, HC Bani Singh, Ct. Pradeep and Ct. Ashok reached in the area Rajokari near Kholi Baba Mandir where on the pointing of secret informer, SHO Ishwar Singh apprehended six persons. He further deposed that he had apprehended accused Irfan and from his search, one loaded country made pistol was recovered. It was checked and found containing two loaded cartridge. Further that, he handed over the recovered country made pistol and the cartridge to Insp. Ishwar Singh, who prepared sketch of the country made pistol and cartridge and sealed the same in a pullanda with the seal of IS and took the same into possession. PW14 testified that accused Shahabuddin, Baldev, Rafique, Paras and Munish were also apprehended out of whom, accused Irfan, Shahabuddin, Baldev Raj Ballu and Rafique had made their disclosure statement regarding incident of this case. After conducting the investigation of case FIR No.45/09, they came back to PS. PW14 State Vs. Mohd. Irfan etc. Page No.16/44 FIR No.325/09 identified his signatures on disclosure statement Ex. PW8/C of accused Irfan.
23.1 PW14 deposed further that on 15.11.2009, he had again joined the investigation of this case with the IO and they took accused Irfan to Indra Vihar where he (Irfan) pointed out shop no.1 in the name of Lal Singh Jewellers. The owner of the Lal Singh Jewellers, Pappu Verma met them at the shop. Pappu Verma disclosed that he had melted the jewellery items sold to him by accused Mohd. Irfan. Pappu Verma disclosed that he had prepared nose pins from the melted gold. He handed over three container containing 41 nose pin, 42 and 45 nose pins. These containers were sealed in a pullanda with the seal of IS and taken into possession vide memo Ex. PW14/A. PW14 correctly identified case property i.e. 45 nosepins as Ex.P1, box containing 41 nosepins as Ex.P2 and box containing 42 nosepins as Ex.P3.
24. PW21/Inspector Ishwar Singh deposed that on 14.11.09, he was posted at PS Vasant Kunj South. As per his version, on that day, at about 7.30 AM, during investigation of case FIR no.45/09, on the information of secret informer, PW21 arrested six accused person namely Paras, Munesh, Rafiq, Shahbuddin, Baldev Raj and Mohd. Irfan from near Kholi Baba Mandir and interrogated them and recorded their disclosure statement vide Ex. PW8/B (Shahbuddin), Ex. PW8/C (Mohd. Irfan), Ex. PW8/D (Baldev), Ex. PW8/A (Rafiq). He further deposed that following articles were recovered from the possession of accused persons and same were measured, sketches were prepared and seized and taken into police possession.
State Vs. Mohd. Irfan etc. Page No.17/44 FIR No.325/09 Name of Articles recovered Sketch Seizure Exhibit of accused Memo Articles Shahbuddin pistol with two live Ex. Ex. Ex.PW-21/P- PW8/G cartridges PW8/H 2&3 Mohd. Irfan one pistol loaded with two Ex. Ex. Ex.PW21/P4 PW8/J PW8/I live cartridges & P5 Baldev one country made pistol Ex. Ex. Ex.PW21/P6 PW8/L PW8/K loaded with one live to P14 cartridge, two more live cartridges, 5 monkey caps, two pairs of surgical gloves, one bundle of rope, one glass cutter, two torch, two screwdriver etc. Rafiq one knife like Churra Ex.PW Ex. Ex. PW- 8/F PW8/E 21/P-1 Paras and one loaded country made Not Munesh accuse pistol with two live d in cartridge and one Churra the presen t case Member of investigation team of present FIR
25. PW4/HC Subhash Chand deposes that on 16.09.2009, upon receipt of DD no.52A, he reached the spot i.e. house no.370, village Chattarpur where house was found ransacked and locks were broken. He informed the SHO and subsequently SI Gajraj Singh reached there and took over the investigation and recorded statement of complainant and prepared rukka. PW4 took the rukka to PS and got the FIR lodged. Further that, IO seized some pieces of clothes and pillow cover having some foot mark vide memo Ex. PW4/A and sealed the same with the seal of GS. PW4 further deposed that seal after use State Vs. Mohd. Irfan etc. Page No.18/44 FIR No.325/09 was handed over to him. PW4 correctly identified the case property i.e. clothes pieces as Ex. P-1 and pillow cover as Ex. P-2.
26. PW15/HC Ramesh Chand deposed that on 08.12.09, while he was posted as HCt. in PS Mehrauli, he joined the investigation of this case with IO SI Gajraj Singh. All the four accused (correctly identified) were interrogated by the IO. They made their disclosure statement vide Ex. PW15/A (Shahbuddin), Ex. PW15/B ( Baldev Raj @ Ballu), Ex. PW15/C (Md. Irfan )and Ex. PW15/D ( Rafiq). Thereafter, accused Md. Rafiq and Md. Irfan took them to H. No. 226 Gali No. 1, Block D, Sangam Vihar and pointed out the house vide pointing out memo Ex. PW15/E and disclosed that they had purchased the said house in the name of Rafiq's mother Begam Jaitun from the amount looted in this case. PW15 further deposed that Smt. Begam Jaitun met them there and she handed over them the original documents i.e, General Power of Attorney, agreement to sell, affidavit, possession slip, Will and other documents Ex. PW7/A (collectively) and same were taken into possession vide memo Ex. PW15/F. Further that, IO recorded the statement of accused Rafiq's mother and the previous owner of the house who sold the house to her (Begum Jaitun).
26.1 PW15 further testified that next day i.e. on 09.12.09, accused persons pointed out H No. 370, Chatarpur Village, from where they had committed the dacoity. The pointing out memos are Ex. PW15/G ( Shahbuddin), Ex. PW15/H (Md. Irfan), Ex. PW15/I ( Rafiq) and Ex. PW15/J (Baldev Raj). Further that, Ct. Ran Singh was also with them at that time.
27. PW19/Retired SI Gajraj Singh is the IO of this case. He in State Vs. Mohd. Irfan etc. Page No.19/44 FIR No.325/09 his examination in chief, deposed that on 16.06.2009, while he was posted at PS Mehrauli, one DD No.52A Ex.PW10/A was marked to HC Subhash and he (PW-19) was also instructed to reach at the spot i.e. house no.370, Chhatarpur. Accordingly, he (PW-19) reached at the spot where HC Subhash, complainant Bala Ram and his wife Laxmi and Crime team consisting of HC Bhagwan Singh and Ct. Anand were found present. He further deposed that he made inquiries from Bala Ram and recorded his statement Ex.PW5/A which was duly attested by him vide his attestation at point B. The place of incident was got inspected by the members of Crime Team. After inspection, Incharge Crime Team had prepared Crime Scene Report Ex.PW2/A. On the statement of Bala Ram, rukka Ex.PW19/A was prepared and handed over to HC Subhash for registration of FIR. PW19 further deposed that he inspected the place of incident at the instance of complainant Bala Ram and his wife and prepared rough site plan Ex.PW19/B. He recorded statement of HC Bhagwan Singh and Ct.Anand, who were members of Crime Team and they were relieved. After registration of FIR, HC Subhash returned to the spot alongwith copy of FIR and rukka and handed over the same to him (PW-19). He further deposed that one pillow cover and other material used by the offenders to tie the complainant, his wife and their maid Deepa were taken into police possession after sealing the same in parcels, vide seizure memo Ex.PW4/A. Thereafter, he (PW-19) recorded statement of PW Smt. Deepa, Smt. Laxmi wife of complainant and other servants. While they were investigating at the spot, Suraj son of the complainant also reached there. After inspection, Suraj told him (PW-19) about the jewellery articles and cash which were robbed from his room. One list of robbed articles Ex. PW-6/A was handed over to him (PW-19) by Suraj. He (PW-19) also recorded statement of Suraj in this regard.
State Vs. Mohd. Irfan etc. Page No.20/44 FIR No.325/0927.1 PW19 further deposed that they made efforts to trace the accused persons but could not trace them. On 24.11.2009, an information was received vide DD No.5A from PS Vasant Kunj South regarding arrest of accused Irfan, Rafiq, Baldev and Shahabuddin in case FIR No.45/09 PS Vasant Kunj and he was informed that those accused persons had made disclosure statement about the involvement in the present case FIR No.325/09 PS Mehrauli. DDNo.5A Ex.PW19/C bears his signature at point A. He further deposed that on receipt of said information, he (PW-19) went to PS Vasant Kunj and met SI Satpal, the IO of case FIR No. 45/09 PS Vasant Kunj and collected copy of documents prepared by SI Satpal and also recorded statement of witnesses regarding arrest of accused persons and recoveries effected from them. Thereafter, production warrant for the appearance of accused persons were got issued from the concerned court. On 30.11.2009, all the aforesaid four accused were produced in the court. With the permission of court, all the four accused persons were interrogated and arrested in the present case. Arrest memo of accused Baldev was Ex.PW19/D, accused Shahbuddin was Ex.PW19/E, accused Mohd.Irfan was Ex.PW19/F and arrest memo of accused Rafiq was Ex.PW19/G. The accused persons were sent to JC and he (PW-19) moved an application for TIP of accused persons and date of 04.12.2009 was fixed for TIP. On 04.12.2009, he (PW-19) alongwith PW Smt. Deepa and Smt. Laxmi reached at Tihar Jail for TIP of accused persons but accused persons refused to join the TIP proceedings. PW Bala Ram was not taken to Tihar due to his ill health and old age. He (PW-19) collected copy of TIP proceedings. On 07.12.2009, all the four accused persons were produced in court. He (PW19) moved an application for police custody of accused persons State Vs. Mohd. Irfan etc. Page No.21/44 FIR No.325/09 and four days police custody of accused persons was given. During police custody, accused persons were thoroughly interrogated and their disclosure statements Ex.PW15/A to Ex.PW15/D were recorded.
27.2 PW19 further deposed that he had also prepared the dosier of all the four accused persons which also consisted of their finger prints. Thereafter, two accused persons namely Baldev and Shahabuddin were sent to lockup. Accused Rafiq and Irfan took them (PW-19 and others) to Sangam Vihar in pursuance to their disclosure statements. Both of them led the police party to house no.226, Gali No.1, Block D, Sangam Vihar and pointed out the house which was purchased by them from the robbed money. Pointing out memo of said house was prepared which is Ex.PW15/E. The said property was purchased by them in the name of mother of accused Rafiq namely Smt. Begum Jaitun. The relevant documents of property were taken into police possession vide seizure memo Ex.PW15/F. Photocopy of those documents is Ex.PW7/A (total 14 pages) (original documents got released by accused Rafiq). He further deposed that he also examined property dealer Deep Chand through whom the said property was purchased and recorded his statement. He (PW-19) also recorded statement of Smt. Begum Jaitun. Thereafter, they returned to police station and accused persons were sent to lockup.
27.3 He further deposed that on the next day, i.e. 09.12.2009, all the four accused persons had pointed out the place of incident and pointing out memo Ex.PW15/G,H,I and J were prepared. When the accused persons pointed out the place of incident, all of them were seen by Smt. Deepa and Smt.Laxmi and they both had identified all the accused persons. He (PW-19) recorded supplementary statement State Vs. Mohd. Irfan etc. Page No.22/44 FIR No.325/09 of Deepa and Laxmi and thereafter, they returned to police station. All the accused persons except Baldev were sent to lockup. Accused Baldev led police team to Budh Vihar, Phase I and pointed out house no.H-8, Budh Vihar where he was residing on rent. The house was found locked. One motorcycle bearing no.DL-6SQ-2802 Hero Honda Passion was found parked outside the said house. Accused Baldev disclosed that said motorcycle was purchased by him with robbed money. The said motorcycle was taken into police possession vide Ex.PW19/H. The documents regarding said motorcycle were also taken into police possession vide seizure memo Ex.PW19/I and those documents are Ex.PW13/A and Ex.PW13/B. Thereafter, they returned to police station. Accused Baldev was sent to lockup. The motorcycle was deposited in malkhana. He further deposed that on 10.12.2009, accused Shahabuddin led the police team to his village Chiddbak, PS Gulabdi, to the house of one Nadeem to whom the accused had repaid borrowed money of Rs.4 lacs. Said Nadeem was not found in his house as he had already gone to Dubai for employment. They returned to PS Mehrauli and accused was sent to lockup. On the next day all the accused persons were produced before the court on completion of period of four days police custody.
27.4 During investigation, he (PW19) had also obtained the finger prints of occupants of the house where incident had taken place. He (PW-19) also sent finger prints of accused persons and occupants of the house to Finger Print Bureau for comparison with the chance prints obtained by the Crime team. IO also examined Deepak Gaba from whom accused Baldev had purchased the aforesaid motorcycle and recorded his statement. He also examined Faizan Illahi, owner of aforesaid property purchased by accused Rafiq and State Vs. Mohd. Irfan etc. Page No.23/44 FIR No.325/09 Irfan and also recorded his statement. During investigation, PW19 also moved an application to the concerned court for attachment of aforesaid house which was purchased with robbed money and on the said application, Smt. Begum Jaitun was summoned by the concerned court and she had given undertaking that she will not sell off said property till the disposal of the case and accordingly, said application was disposed of by the court.
27.5 Further as per IO/PW19, during interrogation of accused persons, the name of their fifth associate namely Shakeel was also revealed, who met them in Bhondsi Jail while the aforesaid four accused persons were also lodged there in another case and he also made inquiries about Shakeel from Bhondsi Jail but no information was gathered from Bhondsi Jail in absence of complete particulars of Shakeel. During investigation, he (PW-19) also collected finger prints report from Finger Print Bureau. As per report, finger prints of accused Shahabuddin were matched with the chance prints collected by Crime team from the place of incident. As per disclosure statements of accused persons, the robbed jewelery articles were sold by them to one jeweller Pappu Verma. On inquiry from SI Sukhpal, who had arrested jeweler Pappu Verma in their case FIR No.45/09 PS Vasant Kunj, it was revealed that the said jeweller Pappu had melted the gold jewellery and some new jewellery articles were manufactured with the said gold which could not be identified. Therefore, said jeweller was not arrested by him (PW-19) in the present case and was shown in column no.12 of chargesheet. During investigation, he (PW-19) recorded statement of witnesses who joined him in the investigation. On completion of investigation, he filed the chargesheet in the court.
State Vs. Mohd. Irfan etc. Page No.24/44 FIR No.325/09Expert Witnesses
28. PW18/Shri KN Singh is a finger print expert from Finger Pring Bureau. He in his examination in chief, deposed that on 31.07.2009, this case was marked to him for examination of chance prints lifted from the scene of crime. The documents received by him were crime inspection report bearing no.748/09 dated 16.06.2009 alongwith chance prints lifted from the spot which were marked Q1 and Q2. PW18 had also received photographs of those chance prints Mark Q1 and Q2 alongwith their negatives and specimen finger impressions/ palm prints of the four inmates and four suspects and four accused persons as mentioned by him in his report. PW18 testified that he had examined the chance prints mark Q1 and Q2 and found chance print mark Q1 was identical with right thumb impressions mark S1 on finger prints slips of Shahabuddin son of Bundu Khan. Chance print mark Q2 was partial and smudged and does not disclose sufficient number of ridge details in their relative positions for comparison. Hence, it was unfit for comparison/search. Further that, after examination, report was prepared by him vide Ex.PW18/A bearing his signatures at point A. PW18 had also prepared description of chance prints on the basis of enlarged identical prints i.e. Q1 and S1. PW18 proved description report Ex.PW18/B by identifying his signature on the same. He further deposed that enlarged photographs of chance prints and specimen on which he had mentioned 8 points of ridge characteristics in their nature and relative position is Ex.PW18/C & Ex.PW18/D.
29. Prosecution witnesses were duly cross-examined by Ld. defence counsel and relevant part of their cross-examination shall be State Vs. Mohd. Irfan etc. Page No.25/44 FIR No.325/09 discussed in later part of this judgment.
Statement u/s 313 Cr.P.C.
30. After completion of evidence, statements u/s 313 Cr.P.C. of all the accused persons were separately recorded wherein all the incriminating evidence which had come on record during trial was put to them but, the same was denied by them as wrong and incorrect. All the accused pleaded their innocence by saying that the present case was planted upon them after their arrest in FIR no. 45/09, PS Vasant Kunj. They further stated that nothing was recovered from their possession and they never made any disclosure statement regarding their involvement in the present case to the police and their signatures were obtained on blank papers. They categorically denied that they ever visited the house of complainant or committed any offence in said house. All the accused categorically denied that any recovery was effected from their possession or at their instance. They also denied the recovery of any weapon from them. The accused further stated that they did not join the TIP proceedings as their photographs were shown by the police to the witnesses in the police station. Accused Shahbuddin stated that his finger prints were taken by the police in the PS after they falsely arrested him in this case.
30.1 Accused Baldev stated that in the year 2008, he was doing work of collecting scraps alongwith Mohd. Irfan but when Irfan refused to pay his share of money after selling the scraps, he left his company and returned to his native place. He further stated that in the year 2009, he again returned to Delhi and started living in Rohini and started doing work as scrap collector. He further stated that one day, he received a call from Irfan who asked him to collect money due State Vs. Mohd. Irfan etc. Page No.26/44 FIR No.325/09 to him (Irfan) therefore, he went to meet Irfan in Trans Yamuna area near Bhajanpura and from there, he was apprehended by the police.
30.2 Accused Irfan further stated that he was doing a work of scrap dealer and purchased some brass articles during the course of his business which were later on, found to be stolen goods and thereafter, he was falsely implicated by the police in several cases by planting recoveries on him.
30.3 Accused Rafiq stated that he was arrested from his house and got falsely implicated in this case. He further stated that his mother had purchased said house with her own money as she was doing work of stitching ladies garments. Accused Rafiq opted to lead evidence in his defence but, despite opportunity, he failed to lead any evidence in his defence. Hence, DE was closed.
Prosecution Arguments
31. It has been vehemently argued that the prosecution has successfully proved its case beyond all reasonable doubt as the complainant's wife/PW1 Laxmi Devi and their made servant Deepa examined as PW12 have duly identified all the accused persons in the court and have come up with clinching evidence regarding the incident of robbery committed by the accused persons on the date of incident. It is further argued that non identification of the accused persons by the complainant, cannot wash away the evidence of other two eye witnesses who were also present in the complainant's house on the date of incident especially when they were also the victims of the offence. It is further argued that there is no reason for said witnesses to falsely implicate the accused persons as accused were State Vs. Mohd. Irfan etc. Page No.27/44 FIR No.325/09 total strangers to them.
Defence Arguments
32. Counsel Sh. Aman Usman appearing for accused Shahbuddin, counsel Sh. Rajiv Jain for accused Rafiq, counsel Sh. N.K. Srivastava for accused Baldev and counsel Sh. Vineet Baliyan appearing for accused Mohd. Irfan have argued more or less on the same lines. It is argued on behalf of all the accused that the prosecution has miserably failed to prove its case as the complainant, who was the most material witness of the prosecution case turned hostile on identity of the accused and stated in his examination in chief that the accused shown to him in the court were not the robbers who committed robbery at his house. Counsels further argued that witness Deepa who has been examined as PW12 is another important witness of prosecution case and as per prosecution case, she had identified the accused persons on 09.12.2008 and her supplementary statement in that regard was also recorded by the IO but, in her cross- examination recorded before the court on 23.10.2013, she completely demolished the prosecution case on the point of identity of accused by stating that she was called by the police at PS and shown the accused persons and was told that those were the accused persons who had committed robbery at her employer's house.
32.1 It is further argued that even the version of PW1 Smt. Laxmi Devi is full of discrepancies and contradictions as she in her examination in chief deposed that on the fateful night, four robbers entered into the house whereas, as per prosecution case, they were five persons who tress passed into the house, though, one of them could not be traced despite their best efforts. As per complaint Ex.
State Vs. Mohd. Irfan etc. Page No.28/44 FIR No.325/09PW5/A, the accused first entered into the room of the complainant where he was sleeping with his wife/PW1 but, they were tied up by the robbers only after they were taken to another room of complainant's children whereas, as per PW1, robbers tied them before committing robbery in complainant's room itself. Further, considering the fact that the complainant, who was most material witness, in his examination in chief specifically deposed that the accused persons present in the court were not the robbers who committed robbery in his house, the version of PW1 identifying them in the court loses much of its credibility for the reason that she was also shown the accused persons on the same date alongwith another witness Deepa, who in cross-examination has stated that it was police who told her that the persons shown to her in the PS were the persons who committed robbery at the house of her employer.
32.2 It is further argued by defence counsels that in her cross- examination, PW1 has stated that lights were switched off at that time. But subsequently, she improved her version by stating that she switched on the lights when she opened the door and the same is also evident from the fact that PW9, who was also residing in complainant's farm house, has stated in his examination in chief that since there was no electricity therefore, the door of his room was kept open.
32.3 It is further stated that as per statement u/s 161 Cr.P.C. of PW1, her maid servant Deepa, who was examined in this case as PW12, had come to their room later on after the robbers entered into their room as she (PW12) was brought by them from another room where she was sleeping. Whereas, in her examination in chief State Vs. Mohd. Irfan etc. Page No.29/44 FIR No.325/09 recorded before the court, PW1 stated that the four robbers entered into her house at 4:00 am and first they went to the room of their made Deepa and took her along with them before knocking the door of her (PW1's) room which is a clear deviation from her stand taken in 161 Cr.P.C. statement as per which, Deepa was not with robbers when they knocked at the door of complainant. It is further argued that as per statement u/s 161 Cr.P.C. of PW1, screw driver was used for breaking open the lock of almirah lying in the room of complainant while in her examination in chief, the lock of almirah was broken with iron rod. It is further argued that as per examination in chief of PW1, she, her husband and her maid servant Deepa were tied up by accused persons before committing robbery whereas, in her statement u/s 161 Cr.P.C., she stated that they were tied up by the accused persons after committing robbery.
32.4 It has been further argued that as per prosecution story, the chance prints were lifted from two places one from refrigerator and one from battery of mobile phone which was lying on the Sofa and as per the finger prints expert report, the chance prints lifted from refrigerator got matched with the finger prints of accused Shahabuddin on the charge slip. Whereas, none of the prosecution witnesses in their examination in chief anywhere referred to any refrigerator lying in the complainant's room or in the room of complainant's children or their maid servant Deepa's room where the robbers allegedly went for committing robbery. None of the witnesses has even deposed that the accused persons had opened the door of any refrigerator in their presence and therefore, the prosecution has failed to prove that what was the occasion for the accused Shahbuddin to touch the handle of the refrigerator. Even otherwise, State Vs. Mohd. Irfan etc. Page No.30/44 FIR No.325/09 the finger prints on the charge slip were taken by the police during their police custody, without any permission from the court and hence, cannot be relied upon. It is also vehemently argued that no recovery of money or jewellery articles allegedly robbed from the house of complainant has been effected from the possession of any of the accused or at their instance.
33. I have given my thoughtful consideration to the rival contentions raised from both the sides and have also carefully perused the entire record.
Court's Discussion
34. Let us now analysis the evidence in order to ascertain whether the prosecution has been able to prove the charges against the accused. For that, firstly it has to be seen whether the witnesses examined by the prosecution are reliable and trustworthy and secondly, whether their testimonies disclose the essential ingredients of the offence allegedly committed by the accused. Before adverting to respective contentions of parties and the evidence adduced on record, I deem it appropriate to glance through the relevant provisions of law relating to the charges framed against the accused persons. As noted above, the accused have faced trial for the charges of the offence of robbery punishable u/s 394/397/34 IPC. Section 390 defines robbery and first part of said provision describes the circumstances in which theft becomes robbery and same reads as under:-
When theft is robbery. - Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or State Vs. Mohd. Irfan etc. Page No.31/44 FIR No.325/09 attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
Section 392 IPC reads as under:-
392. Punishment for robbery. - Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
Section 394 & 397 IPC prescribe graver punishments in the circumstances when hurt or grievous hurt is caused or any deadly weapon is used while committing or attempting to commit robbery.
35. As is evident from above section, theft becomes robbery when in order to committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
36. Let us now advert to the prosecution evidence. In total, prosecution has examined 23 witnesses out of whom, PW1 Laxmi Devi, PW5 Bala Ram, PW9 Mahanand Jha, PW12 Deepa, PW16 Mandai Kumar, PW17 Vijay Kumar Jha and PW23 Permanand Jha are the material witnesses of the prosecution case as they all were present in the farm house of complainant at the time of alleged incident.
37. As per the version of PW1 Laxmi Devi, in the intervening State Vs. Mohd. Irfan etc. Page No.32/44 FIR No.325/09 night of 15/16.06.2009, she was sleeping with her husband in one room while her maid servant Deepa was sleeping in another room. At about 4:00 am, four robbers entered into their house and went to the room of her maid servant Deepa and they took her along with them and knocked at the door of her (PW1's) room. When she opened the door, she found four persons i.e. accused persons, whom she correctly identified in the court, standing with her maid servant Deepa and they all were armed with iron rods and pistols. PW1 further testified that the robbers asked her for the keys of almirah but she stated that the keys were lying with her son upon which, the robbers started breaking almirah and committed theft of cash and jewellery. As per her version, before committing robbery, the robbers tied her (PW1), her husband and maid Deepa and also threatened them by showing them weapons.
38. During her cross-examination, PW1 pointed out towards accused Irfan and said that he had placed his gun on the shoulder of her husband, while pointing towards accused Irfan and Shahbuddin, the witness stated that said two accused had broken the almirah but she could not say who out of two was carrying the rod. PW1 further deposed that the other two accused had gone to the room of her son. She also admitted the suggestion that she did not see the other two assailants. She however, denied the suggestion that she had not seen the other two accused at all. She further voluntarilly stated that all of them had come inside the house and stopped outside her room, and only two of them had come inside their room while the other two went to the room of his son. She further stated that she had not noticed any weapons in the hands of other two accused. Further as per PW1, accused had taken away six bangles of diamond, a diamond set, one State Vs. Mohd. Irfan etc. Page No.33/44 FIR No.325/09 diamond ring and one pair of diamond ear ring from her room. She further deposed that accused had also taken away some cash from their room but only, her husband could tell the amount of cash taken away by them. As per PW1, accused persons had come to their house at about 4:00 am and they stayed there till 5:00-5:30 am. She testified further that lights were switched off at that time and she switched on the light only when she opened the door. She denied the suggestion that she had not seen them as there was no light in the room or that it was dark. She denied the suggestion that she was deposing falsely.
39. PW5 Bala Ram is another material witness of the prosecution case as he is the complainant who got the FIR lodged. As per his examination in chief, on 16.06.2009, at about 4:00 pm, while they were sleeping in their house, five persons entered into their house by breaking the door and woke them up. The accused gave them beatings, ransacked the house, robbed cash and jewellery from their house. As per PW5, they were tied up by the accused and were made to sit in a corner. Further as per his version, his wife and maid servant, who were also in the house, were also tied up and given beatings by the accused. PW5 further stated that none of those robbers were present in the court on that day. He however, proved his statement Ex. PW5/A by identifying his signature on the same.
40. As PW5 turned hostile on the point of identity, he was cross examined by Ld. Addl. PP with the permission of the court but even in his cross-examination, he did not support the case of prosecution on identity of accused as he denied the suggestion that the accused persons, who were present in the court at the time of his State Vs. Mohd. Irfan etc. Page No.34/44 FIR No.325/09 examination, were the same robbers who had committed robbery in his house on 16.06.2009 or that he was unable to identify the robbers due to his old age or out of fear. In his cross-examination by the Ld. Defence counsel, PW5 further stated that there was light in the house. He however, denied the suggestion that Laxmi Devi had opened the door and it was not broke open by the robbers.
41. Before referring the testimonies of other public witnesses examined in the matter, I may mention here that the version of complainant is at total variance from the version of his wife i.e. PW1. As per PW5, the robbers entered into the house by breaking open the doors because in his cross-examination by defence counsel, he denied the suggestion that his wife Laxmi Devi had opened the door and it was not broken by the robbers. In his examination in chief, PW5 specifically stated that five accused persons entered into their house by breaking open the door and woke them up. On the contrary, PW1 deposed that four robbers had entered into their house and knocked at the door of their room, and it was she (PW1) who opened the door. PW1 has nowhere stated that the door of their room was broke open by the robbers. Furthermore, as per PW5, there were five robbers, who entered into their house, whereas, PW1 stated that only four robbers had entered into their house on the date of alleged incident.
42. It is also pertinent to note that it is nowhere the case of complainant/PW5 that he could not see the faces of robbers or for that reason, he was unable to identify the accused persons. Rather as per his version, there was light in the house at the time of alleged incident therefore, it is not because of darkness or lack of light, he could not see the faces of robbers but he categorically stated that the State Vs. Mohd. Irfan etc. Page No.35/44 FIR No.325/09 accused present in the court, were not the robbers which means that though he was very well capable of identifying the persons who committed robbery in his house but, the persons shown to him in the court were not persons who actually committed robbery.
43. Considering the fact that both the complainant as well as his wife are the eye witnesses of the offence and one of the m turned hostile on the identity, the version of the other prosecution witnesses has to be scrutinized with great caution to test their credibility. Let us now examine the version of third eye witness namely Deepa who was examined as PW12.
44. PW12 Ms. Deepa says in her examination in chief that about 3-4 years ago, she was working as a maid in the house of a person whose name she did not remember and in the house of said person, a theft had taken place when she was sleeping. She further deposes that robbers wake her up, took her to the room of Aunty where she was made to sit. Thereafter, robbers robbed the articles of the house. She further claimed that she could identify those persons who committed the robbery and she correctly identified the accused persons in the court and stated that they were the same persons who committed robbery.
45. PW12 in her cross-examination, deposed that her statement was recorded by the police in the police station. She also stated that accused persons were four in number when they woke her up and they took her to the room of uncle and aunty (landlord and landlady). She stated further that she did not remember as to what the accused persons were carrying as her head was down. She further State Vs. Mohd. Irfan etc. Page No.36/44 FIR No.325/09 stated that she did not know what articles were robbed. She further deposed that police had called her at police station and showed her the accused persons and told that those were the accused persons who had committed robbery at her employer's house.
46. The said statement of PW12 to the effect that it was police who had told her that the accused persons shown to her in the police station, were the persons who had committed robbery at her employer's house, has dented the prosecution case on the identity of accused because from said statement, it appears that the witness/ PW12 was able to identify the accused persons in the court only because they were shown to her by the police in the police station and police told her that they were the persons who had committed robbery at her employer's house. A serious doubt on the credibility of prosecution story on the point of identification of accused also gets created for one more reason because as per deposition of IO, PW19 SI Gajraj, the accused had pointed out the place of incident on 09.12.2009 and at that time, they were seen by PW12 Smt. Deepa and PW1 Smt. Laxmi Devi and they both identified them correctly. Whereas, as per version of PW12 Deepa, she identified the accused persons in the police station.
47. Before adverting to the cross-examination of other prosecution witnesses, it is necessary to mention here that as per prosecution case, all the four accused persons were arrested on 14.11.2009 in FIR no.45/09, PS Vasant Kunj and pursuant to their disclosure statements regarding their involvement in the incident of present case, they were arrested in the instant FIR on 30.11.2009. However, no recovery of any robbed articles was effected from their State Vs. Mohd. Irfan etc. Page No.37/44 FIR No.325/09 possession or at their instance. In the instant case, accused were remanded to police custody for four days on 07.12.2009 and during said period, disclosure statements of accused were recorded by the IO and IO also prepared their dosier and took their finger prints. As per the prosecution case, accused Irfan and Rafiq had purchased one house in the name of Rafiq's mother namely Begum Jaitun at Sangam Vihar with their share of looted money while accused Baldev had purchased a motorcycle with his share of looted money. In this regard, the prosecution has also examined PW7/Deep Chand who stood witness to the sale documents vide which Rafiq's mother had allegedly purchased the house at Sangam Vihar and PW13 Deepak Gaba from whom accused Baldev Raj allegedly purchased the motorcycle bearing no.DL06SQ-2802 on 29.09.2009. However, there is no iota of material to establish that the money used by them for purchase of aforementioned movable and immovable property was the looted money of instant case. As per prosecution case, various jewellery articles were also robbed from the house of the complainant but, none of said articles were recovered from the possession of any of the accused or at their instance.
48. As per record, all the accused had refused to join the TIP proceedings on the plea that their photographs were already shown to the witnesses in the police station. Further as per prosecution case, both the said witnesses Laxmi and Deepa had identified the accused persons only on 09.12.2009, when they were in police custody. Thus, it is clear that even as per prosecution case, said witnesses PW1 & PW12 had seen the accused after a long gap of about six months from the date of alleged incident.
State Vs. Mohd. Irfan etc. Page No.38/44 FIR No.325/0949. In above circumstances, it is highly unsafe to record conviction against accused on the basis of their dock identification, unless the testimony of witnesses identifying them (accused) is found to be beyond any reproach or suspicion, the same cannot be safely relied upon. An adverse inference from the refusal of the accused to join test identification parade can be drawn only when there was no justifiable reason with the accused to refuse to participate in the test identification parade. However, where accused is able to show some justifiable reason, no adverse inference can be drawn against him. In the instant case, all the accused have refused to participate in the TIP on the ground that their photographs were shown to the witnesses.
50. In the backdrop of said plea, it is necessary to note that in the instant case, the alleged incident had occurred on the intervening night of 15/16.06.2009 and the accused were arrested on 30.11.2009 only pursuant to their disclosure statement made in another FIR no. 45/09, PS Vasant Kunj wherein they were arrested by the police on 14.11.2009 and as per prosecution case, the witnesses Laxmi Devi and Ms. Deepa had identified the accused in the PS on 09.12.2009 and prior to that, the accused had remained in the PS in the instant case for four days as they were remanded to police custody on 07.12.2009. Considering said facts and circumstances of the case, the possibility of the police having taken their photographs and having shown them to the witnesses, cannot be ruled out.
51. Furthermore, the witness/PW12 Deepa herself in her cross-examination deposed that police had called her in PS and showed her the accused persons and told that those were the accused persons who had committed robbery at her employer's State Vs. Mohd. Irfan etc. Page No.39/44 FIR No.325/09 house, which itself is indicative of the fact that PW12 had not herself identified the accused persons and it is the police who told her by showing the accused persons that they were the robbers who committed robbery at the house of her employer.
52. In view of above circumstances, testimony of PW12 Deepa has rendered unreliable and loses its credibility on the identification of accused and for this reason, the version of PW1 on identification of accused, has remained uncorroborated as no other prosecution witnesses who were present in the house at the time of robbery, have identified the accused persons at the time of their examination recorded before the court. The complainant/PW5 Bala Ram has specifically denied that accused shown to him in the court were the persons who committed robbery at his house on the date of incident while PW9 did not identify them by saying that he could not see the faces of assailants as there was no light in the room at that time. As per his version, when the robbers entered into their room, there was no electricity and therefore, they (PW9 and PW13) had kept the door of their room open.
53. PW9 Mahanand Jha, was working as meson and was residing in the farm house of the complainant at the relevant time. As per his version, on 15/16.06.2009, he was sleeping alongwith his brother at the house of the complainant and the doors of the room were kept open because there was no electricity. In the night, 3-4 persons entered into the room, apprehended them, gagged his mouth as well as the mouth of his brother and they also tied up his hands and legs with a cloth and similarly they also tied up his brother. Thereafter, he was instructed by the assailants to lay down on the State Vs. Mohd. Irfan etc. Page No.40/44 FIR No.325/09 floor of the room and threatened not to raise any alarm. One of the boy remained there to keep watch on them while the other boys left from the room. Thereafter, said person untied their hands and legs and took them to adjacent room where 7 persons including two ladies and two children were already confined. Thereafter, after confining them all in one room, the door of the room was bolted from outside. PW9 further testified that he could not see the faces of assailants as there was no light at that time. He further stated that he could not identify any of the accused persons present in the court. PW9, even in his cross-examination by Ld. Addl. PP, did not identify the accused and he categorically denied the suggestion that he was not identifying them as he was won over by them.
54. As per PW16, who was working as a guard in the house of complainant at the time of incident, the offenders had come to the spot by covering their faces and they had also covered his (PW16's) face with the piece of cloth. PW16 was not even asked to identify the accused persons at the time of his examination in the court. PW17 Vijay Kumar Jha also did not identify the accused persons saying that he could not see their faces as the light of his room was off and it was dark. PW23 Parmanand Jha, who is brother of PW17, also could not identify the accused persons for the same reason saying that it was dark in the room where they were confined by the robbers.
55. While assessing the credibility of a witness court may find ocular testimony falling into three categories, namely, (1) wholly reliable, (2) wholly unreliable, and (3) neither wholly reliable nor wholly unreliable. In the first category of proof, the court should have no difficulty in coming to its conclusion either way. It may convict or State Vs. Mohd. Irfan etc. Page No.41/44 FIR No.325/09 acquit on the testimony of a single witness, if it is found to be above reproach or suspicious of interestingness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. In the third category of cases the court has to be circumspect and to look for corroboration in material particulars by reliable evidence, direct or circumstantial.
56. The court, while evaluating the facts of a case, is supposed to form its opinion about the credibility of the witnesses examined in the case. The judge has to form his own estimate of the evidence produced before him and to articulate an opinion on credibility of the witness(es). For the purpose of assessing the credibility, the Court has to consider evidence of a witness to find out what impression is created by his evidence, taken in context of other facts of the case.
57. As already discussed above, there are serious discrepancies in the version of PW1 on many material aspects like number of robbers i.e. whether they were five or six when they came to the complainant's room, regarding their mode of entry in the room i.e. whether it was by breaking the door as alleged by PW5 or the door was opened as claimed by PW1. At the cost of repetition, I may again mention that PW1 had specifically denied that the accused shown to her in the court were the persons who committed robbery in her house which is a situation totally different from the one where the witness does not identify the accused saying that he could not see their faces on account of some reason such as due to darkness in the room or due to poor eye sight/vision or due to the fact that accused were covering their faces. Here, there is total contradiction between State Vs. Mohd. Irfan etc. Page No.42/44 FIR No.325/09 the testimony of the complainant and his wife who both were present at the time of robbery, as the one has identified the accused persons saying that they were the same persons who committed robbery in their house while the other categorically denied that they were the persons who committed the robbery in his house. In said circumstances, I am of the view that the accused deserve to be granted benefit of doubt especially when there is no corroboration on the identification of the accused from any other witnesses who were present in the house on the date of incident.
58. Prosecution has heavily relied upon the incriminating evidence in the form of report of a finger print expert as per which, the finger prints on the charge slip of accused Shahbuddin got matched with the chance prints lifted from the spot by the crime team. But, it is important to note that the finger prints of accused Shahbuddin, which were later compared with the chance prints allegedly lifted from the spot, were taken at the time of preparing dosier of the accused persons and admittedly, the same were not taken with the permission of the court. Section 311 A Cr.P.C. which was introduced by the Amendment Act 25 of 2005 came into force w.e.f. 23.06.2006 and said section vests the Magistrate with the power to order any person to give specimen signature or handwriting during investigation of any case and the same was inserted in the Cr.P.C. only on the recommendation of Hon'ble Apex Court in State of Uttar Pradesh vs. Rambanu Mishra (1990) Voulmn 2, SCC 343 because prior to that only Section 73 of Indian Evidence Act was in existence, which confers such powers to the court for taking specimen signature or handwriting only during pendency of any inquiry or trial before the court.
State Vs. Mohd. Irfan etc. Page No.43/44 FIR No.325/0959. In the instant case, the present FIR was registered in the year 2009 and in view of the fact that the finger prints of accused Shahbuddin were taken by the IO at the time when he was in police custody and that too without seeking any such permission from the court u/s 311 A therefore, any report of expert based on specimen finger prints of accused, cannot be read into evidence against said accused.
60. Having regard to aforementioned discussion, I feel no hesitation in holding that prosecution has failed to bring any sufficient evidence to prove the identification of accused persons. The evidence on record regarding identification of the accused is full of material discrepancies and contradictions hence, not reliable. In said circumstances, when prosecution has failed to even establish the identity of accused persons, there is no reason for the court to look for the other requirements necessary for establishing the guilt of the accused. Accordingly, all accused persons are acquitted of the offences punishable u/s 394/397/34 IPC. Their earlier bail bonds and surety bonds stand cancelled and discharged. The accused, who are in cusotdy, be immediately released if not required in any other case subject to their furnishing bail bond in terms ofSection 437A Cr.P.C. File be consigned to record room.
Announced in open Court on 28.09.2018 (Sunena Sharma) Additional Sessions Judge-03, (South) Saket Courts, New Delhi John Digitally signed by John Doe Doe Date: 2018.10.01 16:25:17 +0530 State Vs. Mohd. Irfan etc. Page No.44/44 FIR No.325/09