Delhi District Court
State vs . 1. Salman, S/O Chaman Khan, on 4 February, 2013
IN THE COURT OF SH. RAVINDER DUDEJA: ADDITIONAL
SESSIONS JUDGE; (EAST) FTC, E-COURT :
KARKARDOOMA COURTS: DELHI.
SESSIONS CASE No. 54/11
FIR No.58/11
U/S: 392/397/34 IPC
PS: Shakar Pur
State Vs. 1. Salman, S/o Chaman Khan,
R/o H. No. D/233, Gali No. 5,
Noor Elahi, North Ghonda,
Bhajan Pura, Delhi.
2. Ahsan, S/o Mehruddin,
R/o H. No. D/110, Gali No. 9,
Mohan Puri, Bhajan Pura,
Delhi.
3. Tanveer, S/o Mainuddin,
R/o H. No. D/75, Main Road,
Yamuna Vihar Road,
Noor Elahi, Bhajan Pura,
Delhi.
FIR No. 58/11 Page 1 of 18
4. Pritam @ Sunny,
S/o Mahabir Singh,
R/o C-121, Lal Dora,
Firni Road, Rithala,
New Delhi.
(since discharged vide order
dated 27.09.2011)
5. Sachin,
S/o Niranjan Singh,
R/o H. No. 1009, Lal Dora,
Firni Road, Rithala,
New Delhi.
6. Dilshad, S/o Iqbal,
R/o H. No. 575/576, Q Block,
Sunder Nagri, Delhi.
7. Sameer @ Bunty,
S/o Mohd. Anish,
R/o 14/174, Sami Manzil,
Hospital Road, Sindhi Bazar,
Agra (U.P.)
FIR No. 58/11 Page 2 of 18
Date of Institution : 08.07.2011
Judgment reserved on : 28.01.2013
Delivered on : 04.02.2013
JUDGMENT
1. Prosecution case, in brief, is that complainant Yogesh Kumar was the driver of Xylo Car bearing No. UP14-BT-8506 attached with Nokia Network, Sector 62, Noida and on 12.02.2011 at about 5.30 pm, he parked his car near Shubham Eating Corner at Vikas Marg and was waiting for customer Priyanka Jha. A boy came there and asked him the way to ITO. The second boy came and put knife on his neck. The first boy then put a pistol on the complainant. In the meanwhile, two more associates of those boys came and sat inside his car. All the four boys then dragged the complainant in the car and drove the car to iron bridge via Pushta road. Complainant was given leg and fist blows. On reaching the iron bridge, complainant was brought down and was shifted to a white colour Maruti van and dropped at Tronica City, April Park, Water Tank, Loni, Ghaziabad. His Xylo car and mobile phone No. 9910341132 lying in the car was robbed. FIR was registered under Section 392/34 IPC.
Accused Tanveer and Salman were arrested in case FIR No. 97/11, under Section 25 Arms Act, PS Gazi Pur. They FIR No. 58/11 Page 3 of 18 made disclosure statement with regard to their involvement in the present case. They were arrested in this case. Accused Tanveer disclosed that he and his associates Salman, Ahsan and Dilshad had robbed a Xylo car on 12.02.2011 from Vikas Marg by putting pistol on the complainant. An application was filed for their TIP which was fixed for 15.04.2011 but TIP could not conducted as Tanveer and Salman were not in jail.
Accused Ahsan @ Dudhiya was arrested in case FIR No. 113/11 under Section 411/34 IPC PS Kalyan Puri and he too made a disclosure statement with regard to the present case. He was then arrested in the present case on 13.04.2011. As per his disclosure statement, he had used the knife in the commission of robbery. On 17.04.2011, accused Tanveer disclosed that country made pistol used by him in the robbery was left in the Innova car in some other incident and that the same was lying deposited at Police Station Mandawali. On 18.04.2011, complainant correctly identified accused Ahsan in the TIP. On 02.05.2011, the TIP of accused Tanveer and Salman was conducted at Tihar Jail but they refused to take part in the TIP. Charge sheet was filed against accused Salman, Ahsan and Tanveer under Section 392/397/34 IPC.
Accused Pritam and Sachin were arrested on 10.07.2011 under Section 41.1 Cr. PC vide DD No. 46-B. The FIR No. 58/11 Page 4 of 18 robbed mobile phone of complainant was recovered from the possession of accused Sachin. They made disclosure statements with regard to their involvement in the present case. They were arrested in this case. Accused Pritam in his disclosure statement stated that he and Sachin had purchased the robbed mobile phone for Rs. 500/- from one Salim. Supplementary charge sheet was filed against accused Pritam and Sachin under Section 392/397/411/34 IPC.
Accused Ahsan and Tanveer disclosed that the Xylo car was sold by accused Dilshad and Ahsan to one Sameer @ Bunty at Agra for Rs. 1 lakh. Accused Dilshad and Sameer were arrested on 06.09.2011 in case FIR No. 34/11 under Section 379 IPC PS Mandawali by AATS East. They were then arrested in the present case. During police remand, accused Sameer pointed out the place where Dilshad and Ahsan had sold the Xylo car to him. Accused Sameer disclosed that he had sold the Xylo car to one Saleem for Rs. 1,60,000/- and that Saleem had removed and thrown the number plate of Xylo car. Accused Sameer then got recovered the number plate of Xylo car No. UP14-BT-8506 from the heap of garbage. Saleem could not be arrested. An application was filed for the TIP of accused Dilshad but his TIP could not be conducted as complainant did not join the TIP out of fear. Supplementary charge sheet was filed against accused Dilshad and Sameer @ Bunty.
FIR No. 58/11 Page 5 of 182. Main charge sheet and supplementary charge sheets were committed to Sessions Court after compliance of Section 207 Cr. PC. Charge under Section 365/392/34 IPC was framed against accused Salman, Ahsan and Tanveer, charge under Section 397/34 IPC was framed against accused Ahsan and Tanveer, and separate charge under Section 411 IPC was framed against accused Sachin, Dilshad and Sameer @ Bunty to which they pleaded not guilty. Accused Pritam was discharged by my learned Predecessor vide order dated 27.09.2011 observing that there was absolutely no evidence against him.
3. In order to prove its case, prosecution examined 15 witnesses. PW-1 is ASI Naresh Kumar, Duty Officer. He proved the FIR Exbt. PW-1/A. PW-2 is Inspector Amleshwar Rai. After registration of the FIR, investigation was entrusted to him. He came at the spot along with complainant Yogesh Kumar and Constable Kailash and prepared the site plan Exbt. PW-2/A on the pointing out of the complainant.
PW-3 is SI Sumer Singh, Duty Officer. On 12.02.2011, he received a PCR call regarding the snatching of Mahendra Jeep by four boys at Laxmi Nagar Chowk. He recorded the information FIR No. 58/11 Page 6 of 18 vide DD No. 11-A Exbt. PW-3/A. PW-4 is HC Devender Singh. He joined the investigation on 04.04.2011 and came to the court of Sh. A.K. Aggarwal, MM with Inspector Akhileshwar Mishra where the accused Salman and Tanveer were arrested vide arrest memo Exbt. PW-4/A and Exbt. PW-4/B. PW-5 is Yogesh Kumar. He is the complainant. He proved his statement Exbt. PW-5/A. He could not identify the accused who robbed him of his vehicle. He identified the mobile phone Exbt. P-1 allegedly recovered from accused Sameer but failed to identify the number plate Exbt. P-2.
PW-6 is HC Umesh. He deposed that on 10.07.2011, he and Constable Sandeep were patrolling in the area of Asola and that at about 5.30 pm, he received a secret information that two boys will come on a motorcycle bearing No. DL3S-DE-1403 with two stolen mobile phones. He requested 4-5 passers by to join the investigation but they refused. He and Constable Sandeep started checking the vehicles at Shani Dham Mor. At about 6.30 pm, accused Pritam @ Sunny (since discharged), who was driving the motorcycle and accused Sachin who was sitting on the pillion seat came from the side of IIPM. He gave them signal to stop but they took U-turn and tried to run away. They were chased and FIR No. 58/11 Page 7 of 18 apprehended. Two mobile phones were recovered from the possession of accused Sachin, one of the mobile phones was of Nokia red and black colour, Model C-100 and the other was Nokia black and blue colour Model 1616. The IMEI number of both the mobile phones was checked from CIPA Net. The mobile phone of black and blue colour was the case property of this case. Both the mobile phones were seized vide memo Exbt. PW-6/A. Both the accused were then arrested and Kallandra Exbt. PW-6/F was prepared against them.
PW-7 is HC Nisha Kapoor, Duty Officer. She had recorded the information regarding the disclosure statement given by accused Ahsan in case FIR No. 113/11, PS Kalyan Puri vide DD No. 49-B Exbt. PW-7/A. PW-8 is Constable Sandeep. He is the witness of arrest of accused Sachin and Pritam and also the witness to the recovery of mobile phone from the possession of accused Sachin.
PW-9 is Sh. J.P. Nahar, Relieving Judge, Karkardooma Courts. He had conducted the TIP of accused Ahsan. He stated that accused Ahsan was correctly identified by witness Yogesh Kumar in the TIP. The TIP proceedings are Exbt. PW-5/B. He had conducted the TIP of accused Tanveer and Salman which are Exbt. PW-9/F and Exbt. PW-9/G. FIR No. 58/11 Page 8 of 18 PW-10 is ASI K.P. Singh. Complainant Yogesh Kumar met him at the police station. He recorded his statement and made endorsement Exbt. PW-10/A and gave the same to Duty Officer for the registration of the FIR.
PW-11 is Constable Rajeshwar. He deposed that on 10.09.2011, he along with SI Pradeep, Constable Budh Ram and accused Sameer went to Agra where at the instance of accused Sameer, an iron number plate bearing No. UP14-BT-8506 of white colour was recovered from the heap of rubbish from a place told by the accused. He stated that the number plate was kept in a cloth pullanda and sealed with the seal of PK and seized vide memo Exbt. PW-11/A. In cross examination by the learned APP, he admitted that accused Sameer had pointed out the place near the gate of Bhagwan Talkies at the corner of M.G. Road, Agra vide memo Exbt. PW-10/B. He admitted that accused Sameer pointed out the place at the corner of Shahid Nagar turning near a khokha stating that he had sold the Xylo car bearing no. UP14- BT-8506 to Saleem vide memo Exbt. PW-11/C. He admitted that the number plate was rusted and was of yellow colour with number written on it with black colour and "All India Tourist Permit" was also written on the plate.
PW-12 Constable Budh Ram was dropped by the FIR No. 58/11 Page 9 of 18 learned APP being repetitive of PW-11.
PW-13 is SI Pradeep Kumar. The investigation was entrusted to him. On 22.08.2011, he prepared the charge sheet against accused Sachin and Pritam @ Sunny. On 03.09.2011 on receipt of information from AATS, East District, he came at Karkardooma Court and with the permission of the court, arrested the accused Dilshad vide arrest memo Exbt. PW-13/A and interrogated him and recorded his disclosure statement Exbt. PW- 13/B. He stated that accused Dilshad pointed out the place of incident in front of Shubham Eating Corner, Vikas Marg vide memo Exbt. PW-13/C. He further stated that on 06.09.2011 on receipt of an information from AATS, he came to Karkardooma Courts and arrested the accused Sameer @ Bunty and recorded his disclosure statement Exbt. PW-13/E. He further deposed that accused Sameer was taken to Agra for the recovery of case property and that accused Sameer pointed out the place where he had taken the robbed car from Ahsan and Dilshad vide memo Exbt. PW-11/C and pointed out the place where he had handed over the robbed car to Saleem vide memo Exbt. PW-10/B and got recovered the number plate of the Xylo car from the heap of garbage from a corner near cinema hall.
PW-14 is Inspector Akhilesh Mishra. He was assigned the investigation of this case on 18.03.2011. On 31.03.2011 on FIR No. 58/11 Page 10 of 18 getting an information that Salman and Tanveer, arrested in an Arms Act case at Police Station Gazi Pur had made disclosure with regard to the present case, he filed an application for their production warrants and on 04.04.2011 with the permission of the court, he arrested them and recorded their disclosure statements Exbt. PW-4/B1 and Exbt. PW-4/C. On getting further information, he filed an application for production warrants of accused Ahsan and arrested him vide arrest memo Exbt. PW-14/A and recorded his disclosure statement Exbt. PW-14/B. He stated that no recovery could be affected from accused Salman and Tanveer during their police remand. Supplementary statement of accused Tanveer was recorded which is Exbt. PW-14/C. Accused Salman and Tanveer refused to take part in the TIP. They pointed out the place of occurrence vide memos Exbt. PW-14/D and Exbt. PW- 14/E. On getting the information regarding the recovery of mobile phone from accused Sachin and Pritam, he arrested them after obtaining their production warrants and recorded their disclosure statements.
PW-15 is SI Kuldeep Singh. During investigation of case FIR No. 4/11 PS Mandawali, he arrested the accused Dilshad from by-pass road Sirsa Ganj, Shikohabad near Ferozabad, UP on 01.09.2011 and recorded his disclosure statement Mark PW- 15/A and on 03.09.2011, he arrested the accused Sameer from Sadar Bazar, Agra and recorded his disclosure statement Mark FIR No. 58/11 Page 11 of 18 PW-15/B.
4. Statements of accused were recorded under Section 313 Cr. PC. They stated that they were innocent and were falsely implicated. They did not lead any defence evidence.
5. Arguments have been heard from Mohd. Iqrar, learned Additional PP for the State and Mohd. Hassan, Advocate on behalf of accused Ahsan, Tanvir and Dilshad, Chaudhary Sudesh Kumar, Advocate for accused Sameer, Chaudhary Rauf, Advocate for accused Salman and Sh. N.P. Vishwakarma, Advocate for accused Sachin. It has been argued on behalf of the accused Salman, Ahsan and Tanveer that they have not been identified by the complainant and no recovery has been affected from them. The learned counsels of accused Sachin, Dilshad and Sameer have argued that there is no independent public witness of recovery of the mobile phone and number plate and therefore the recovery is doubtful and there is also no proper identification of the mobile phone and the number plate of the Xylo car and hence prosecution has failed to prove the recovery of stolen property.
6. I have carefully gone through the records of the case. PW-5 Yogesh Kumar is the star witness of the prosecution being the complainant. He is the only eye witness of the occurrence. He FIR No. 58/11 Page 12 of 18 deposed that on 12.02.2011 at about 5.30 am while he was waiting in his Xylo car No. UP14-BT-8506 near Shubham Eating Corner at Laxmi Nagar for Priyanka Jha, a boy aged about 24 years came and asked him to drop him at ITO but he refused. The boy then asked him the way to ITO. On his refusal, that boy took out a country made pistol and put it on his temple and took the key of the car from him. Two more boys, who were his associates, entered into the car. They pushed him on the rear seat and started beating him. The boy who had put the pistol on his temple, drove the car to iron bridge on river Yamuna. His hands were tied on the backside and a cloth was tied on his eyes. At iron bridge, he was shifted to another vehicle and at Tronica City, he was pushed out of the vehicle. He then raised the alarm. Some workers came to his rescue and he was untied. He made a call at 100 number from a nearby shop. He stated that his mobile phone make Nokia of black colour and his rexine purse containing Rs. 1200/- - 1400/- and some cards which were lying in the vehicle were taken away by the assailants along with the vehicle. He further deposed that after few days, he was taken by the IO to Tihar Jail where he identified one of the accused as robbers but he could not identify any of the accused in court. PW-1 was declared hostile and was cross examined by the learned APP. In the said cross examination, he admitted that the name one of the accused identified by him in Tihar Jail was Ahsan. He stated that Ahsan identified by him in jail had beard but he was not sure if the FIR No. 58/11 Page 13 of 18 accused shown to him in court was the same person who was identified by him in the TIP. He denied that he had identified accused Tanveer and Salman in court on 28.05.2011. He admitted that in his statement Exbt. PW-5/A, he had given his mobile number but was not sure if his mobile phone was 9910341132.
7. Admittedly, none of the accused was apprehended at the spot. Accused are not named in the FIR. Admittedly, they were not known to PW-5 prior to the occurrence. When the identity of the accused is not known to the eye witness, it is incumbent upon the Investigating Officer to get such a suspect identified from the eye witnesses in his Test Identification Parade which not only ensures that the eye witness's memory regarding the identity of accused is tested but also ensures that the investigation is proceeding on the right track and the person arrested is the real culprit. The learned APP has argued that accused Tanveer and Salman had refused to take part in the TIP and therefore the court may draw an adverse inference against them. The substantive evidence of a witness is his statement in court. Admittedly, PW-5 did not identify either accused Tanveer or Salman in court. By refusing to take part in the TIP, accused Tanveer and Salman took the risk of their identification for the first time in court but PW- 5 could not identify them. No recovery has been affected from them. Thus, there is no evidence to prove their involvement in the FIR No. 58/11 Page 14 of 18 robbery.
8. With regard to accused Ahsan, it has been argued that though PW-5 failed to identify him in court because he was having beard, but yet his identification by PW-5 during TIP is sufficient evidence to prove the identity of accused Ahsan. The TIP, as discussed above, is not a substantive piece of evidence. It is conducted as a tool in the investigation. PW-5 has clearly stated that he was not sure if the accused shown to him in court was the same person Ahsan who was identified by him in TIP in jail. Thus, a doubt is created about the identity of accused Ahsan and without corroboration, accused Ahsan cannot be convicted simply on the basis of his identification in TIP. No recovery has been affected from accused Ahsan. Thus, there is no other evidence against him to hold him guilty of the commission of robbery.
9. PW-5 did not identify the accused Dilshad. His TIP was also not conducted. The charge against him is only under Section 411 IPC with regard to the recovery of number plate of Xylo car from co-accused Sameer @ Bunty pursuant to his disclosure statement. The charge against accused Sameer is also only under Section 411 IPC for the recovery of number plate of the robbed Xylo car. PW-11 Constable Rajeshwar and PW-13 SI Pradeep Kumar are the witnesses of recovery of the number plate of the Xylo car at the instance of accused Sameer from Agra. PW-13 SI FIR No. 58/11 Page 15 of 18 Pradeep Kumar could not tell the time when he proceeded to Agra from Delhi. He could not tell the time when he reached Agra. He could not tell the name of the driver of the private vehicle in which they went to Agra. He stated that he had made departure entry but could not tell the number of the departure entry. He admits that he did not file the copy of DD entry with the file. He admits that no public witness was joined in the recovery proceedings. PW-13 thus gave evasive replies. No explanation has been given for not joining the public persons in the recovery. Thus, there is no corroboration of recovery of number plate from any of the independent witnesses. The incident of robbery took place on 12.02.2011 and the number plate is shown to have been recovered after about seven months on 06.09.2011 from Agra. PW-11 and PW-13 admitted that similar number plates can be easily obtained from the market. The complainant did not identify the recovered number plate. Anyone can get similar number plate prepared from the market. Thus assuming that the number plate bearing same number as that of the Xylo car of PW-5 was recovered at the instance of accused Dilshad from accused Sameer, it cannot be held that the recovered number plate was of the same Xylo car which was robbed from the complainant. No other recovery has been affected either from accused Dilshad or Sameer. Prosecution thus failed to prove the charge against both of them.
FIR No. 58/11 Page 16 of 1810. Prosecution is relying on the recovery of mobile phone of the complainant from accused Sachin. PW-6 HC Umesh and PW- 8 Constable Sandeep are the witnesses of recovery of mobile phone from accused Sachin. If the testimonies of these two witnesses are accepted, accused Sachin was apprehended on the basis of secret information. There was sufficient time and opportunity to join the public witnesses but no public witness was joined. No notice was given to the public persons who refused to participate in the investigation. It seems that no real effort was made to join the public persons in the investigation. Thus, there is no corroboration to the testimonies of PW-6 and PW-8 with regard to the recovery of mobile phone. PW-5 stated that his mobile phone was of black colour but the mobile phone allegedly recovered from accused Sachin was of black and blue colour when produced in court. Neither in the FIR nor in his statement in court PW-5 Yogesh Kumar gave the IMEI number of the mobile phone so much so he did not even given the model number of his mobile phone. PW-5 identified the mobile phone Exbt. P-1 but there is no basis for such identification, inasmuch as, all the mobile phones of the same model look alike and they can be identified only on the basis of their IMEI number or from any distinct identification mark but complainant did not tell if there was any distinct identification mark on the mobile phone on the basis of which he could identify that the mobile pone Exbt. P-1 belonged to him which was robbed from him. Thus even if it is to be FIR No. 58/11 Page 17 of 18 believed that the mobile phone was recovered from accused Sachin, prosecution has failed to link the mobile phone with the robbed property.
11. Hence, in view of my aforesaid discussion, I am of the opinion that prosecution has failed to prove its case against all the accused beyond doubt. I therefore acquit all the accused. File be consigned to Record Room.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE:FTC/E-COURT/KKD/DELHI. ANNOUNCED IN THE OPEN COURT ON 04.02.2013.
FIR No. 58/11 Page 18 of 18