Delhi District Court
State vs Salauddin S/O Bundu Khan on 14 September, 2022
IN THE COURT OF SH.PAWAN KUMAR MATTO,
ADD. SESSIONS JUDGE,(SPECIAL JUDGE, NDPS)
NORTH EAST(DISTRICT), KARKARDOOMA COURTS,DELHI
Criminal Appeal No. 10/2020
CNR No. DLNE01-000541-2020
State
Govt. of NCT of Delhi
Through Public Prosecutor,
North East District, Delhi. ........ Appellant/State
Vs.
Salauddin S/o Bundu Khan
R/o H. No.1/248 Shri Ram Nagar,
Takia Gullushah,Shahdara, Delhi. ....... Respondent/Accused
Date of Institution of Appeal : 11.02.2020
Date of Completion of Arguments : 05.04.2022
Date of Judgment : 14.09.2022
JUDGMENT
1. This appeal is directed against the impugned judgment dated 07.12.2019 passed by the court of Ms. Richa Parihar, Metropolitan Magistrate-02 (North-East), Karkardooma Courts, Delhi in a criminal case registered vide FIR No. 102/2017 in Police Station of Seelampur, U/sec. 392/34 of IPC, vide which, the respondent/accused was acquitted U/sec.392/34 of IPC.
2. Feeling aggrieved with the impugned judgment, the appellant/the State has filed the present appeal. Notice of the appeal was served upon respondent/accused, who has also appeared alongwith his counsel.
3. The record of the Trial Court is also requisitioned.
4. Brief facts of the case are that respondent/accused Salauddin alongwith two coaccused namely, Prince and Badshah CA No.10/2020 State Vs Salauddin Page No. 1/14 (who are not arrested) in furtherance of their common intention are alleged to have wrongfully restrained the complainant Nizamudin and robbed away his two mobile phones of Samsung and this respondent/accused Salauddin is alleged to have been apprehended at the spot by the public, whereas, the co-accused are alleged have succeeded in fleeing away from the spot and on statement of the complainant, the FIR was registered U/sec.392/34 of IPC against the respondent/accused. The co-accused could not be apprehended by the Police
5. On the completion of the investigation, the charge sheet was filed by Investigating Officer in the court of Metropolitan Magistrate u/s 392/34 of IPC against the respondent/accused. Copy thereof was supplied to the respondent/accused.
6. The Ld. Trial Court vide its order dated 17.05.2017 was pleased to frame the charge u/s 392/34 of IPC and the respondent/accused pleaded not guilty and claimed trial. Accordingly, the respondent/accused was put on trial. In order to prove its case, the prosecution has examined the (1) complainant Nizamuddin as PW1, (2) Ct. Sandeep as PW2, (3) Rehan Ahmad as PW3, (4) ASI Vijay Kumar as PW4 and (5) ASI Surendra Singh as PW5.
7. On the completion of evidence of the prosecution, the statement of the respondent/accused U/sec. 313 Cr.P.C. was recorded wherein all the incriminating evidence was put before the respondent/accused, he has denied the correctness thereof and claimed that he has been falsely implicated.
CA No.10/2020 State Vs Salauddin Page No. 2/148. I have heard the Ld. Counsel for the appellant/Ld. Additional Public Prosecutor for the State and Ld. Counsel for the respondent/accused and perused the record.
9. The Ld. Additional Public Prosecutor for State has submitted that in the case in hand, this respondent/accused along with co-accused Prince and Badshah had robbed away two mobile phones of the complainant Mr. Nizamuddin and submitted that this respondent/accused Salauddin @ Sallu was apprehended by the public, whereas, co-accused Prince and Badshah succeeded in fleeing away from the spot and they could not be arrested. He has further submitted that since this respondent/accused Salauddin @ Sallu had robbed away two mobile phones of the complainant, so, on completion of investigation, charge-sheet was filed U/sec. 392/34 of IPC and the charge thereunder was framed to which this respondent/accused Salauddin @ Sallu pleaded not guilty and claimed trial.
10. The Ld. Additional Public Prosecutor for the State has further submitted in order to prove its case, the prosecution had examined five witnesses and submitted that since the complainant Nizamuddin has been examined as PW-1 who had also deposed in the Ld. Trial Court that this respondent/accused Salauddin @ Sallu alongwith other co-accused had robbed away his two mobile phones and he has also identified this accused and PW-3 namely Rehan Ahmad, who is also an eye witness, even if, he did not identify the accused, testimony of PW-1 can be relied upon, so, this respondent/accused Salauddin @ Sallu is liable to be convicted U/sec. 392/34 of IPC as the Ld. Trial Court has CA No.10/2020 State Vs Salauddin Page No. 3/14 wrongly acquitted the respondent/accused and prayed for allowing the appeal.
11. On the other hand, ld. Counsel for this respondent/accused Salauddin @ Sallu has submitted that this respondent/accused has been falsely implicated in the present case. He has also submitted that the prosecution has alleged that this respondent/accused alongwith other co-accused had robbed away two mobile phones of the complainant, but, the complainant has failed to prove on record that he was owner of two mobile phones or that said mobile phones were ever robbed by this respondent/accused Salauddin @ Sallu and submitted that nothing has been recovered from this respondent/accused and submitted that police has implicated him in a false case at the instance of the complainant and submitted that, had this respondent/accused robbed away the mobile phones, the same could be recovered from him, but, nothing was recovered from him and since ownership of the mobile phones alleged to have been robbed away, is not proved on the accused and submitted that police had planted another false witness PW-3, but, he has failed to identify this respondent/accused in the Ld. Trial Court and submitted that since nothing has been recovered from this respondent/accused during investigation, nor any proof of ownership of the mobile phones is brought on the record,so, the testimony of the complainant cannot be relied upon, which is not corroborated by the testimony of any other witness and submitted that there is no infirmity or illegality in the impugned judgment, vide which, the respondent/accused has been acquitted and prayed CA No.10/2020 State Vs Salauddin Page No. 4/14 for upholding the judgment passed by Ld. Trial Court and prayed for dismissal of the present appeal.
12. I have given thoughtful consideration to the submissions made by the Ld. Counsels for the parties and perused the record.
13. The perusal of the record of the trial court reveals that the complainant Nizamuddin had been examined as PW-1, who had testified that in the year 2017, the incident had taken place in the month of February and he used to sell fruit on Rehri at Kauria Pul and on the date of occurrence, he was going to Kauria Pul for his work and when he arrived at Dharampura Red light, the respondent/accused, who had disclosed his name as Salauddin alongwith his two associates grabbed his neck and choked him and his two-associates had forcefully taken away his two mobile phones maker of which was Samsung and having color black and white. He had also deposed that after taking his both mobile phones, the accused had pushed him on the ground and he fell down on the ground and the accused started running from the spot. He had further deposed that he raised the alarm and started chasing them by shouting "chor-chor" and the accused persons had entered into a residential colony, where, the public had apprehended one of them, who had disclosed his name as Salaudin, however, his two associates succeeded in fleeing away from the spot. He had further deposed that he had called the son of his landlord namely Rehan @ Raju and the complainant alongwith Rehan took this accused to police station, where his statement Ex.PW1/A was recorded and PW-1 had identified his CA No.10/2020 State Vs Salauddin Page No. 5/14 signature thereon at point-A. He had further deposed that he had also pointed out the spot, where, the present incident had occurred with him and the police had also prepared site plan Ex.PW1/B at his instance and PW-1 had identified his signature thereon at point-A. He had also deposed that respondent/accused was arrested vide memo of arrest Ex.PW1/C and PW-1 had identified his signature thereon at point-A. He had also deposed that personal search of the respondent/accused was conducted vide memo of personal search Ex.PW1/D and PW-1 had identified his signature thereon at point-A. Respondent/Accused Salauddin was correctly identified by the complainant in the Ld. Trial Court. Replying to the court question, he had admitted that incident had taken place on 06.02.2017.
14. He was cross-examined by Ld. Legal Aid Counsel for the respondent/accused and during his cross-examination, he had deposed that the incident had happened with him at 12 :00 noon near Dharampura Red Light and respondent/accused was known to him and his residence is at Shahdara. He had denied that he had money transaction with him in the past. He had admitted it to be correct that bills of the stolen mobile phones are not placed on record. He had deposed that the accused did not steal mobile phone from his pocket. He had also admitted that he did not make call at 100 number, after the incident. He had also deposed that he had taken the accused to the police station at about 11:30 AM to 12:00 Noon and the IO had recorded his statement in the police station. He had admitted it to be correct that IO had not taken him to the spot of incident, after the respondent/accused was handed CA No.10/2020 State Vs Salauddin Page No. 6/14 over to him. He had also admitted that site plan was prepared by the IO in the police Station and he remained in the police station till 5:00 PM. He had further deposed that he does not remember, whether the IO had recorded the statement of other witnesses in his presence in the police station. He had further deposed that he does not remember, if, he had signed the memo of arrest. He had denied the suggestion that the respondent/accused has been falsely implicated in the present case on the pretext of some money transaction or that he was not in a possession of two mobile phones at the time of alleged occurrence or that he had deposed falsely.
15. Ct. Sandeep had been examined as PW-2, who had testified that duty officer had handed over to him the original rukka/tehrir Ex.PW1/A alongwith the copy of FIR with the direction to hand over the same to ASI Vijay Kumar. He had also proved the memo of arrest of this respondent/accused Ex.PW1/C; personal search memo of this respondent/accused Ex.PW1/D; disclosure statement of this respondent/accused Ex.PW2/A and pointing out memo Ex.PW2/B.
16. Sh. Rehan Ahmad had been examined as PW-3, who had testified that on dated 06.02.2017, he was present in his house, at about 12:00 to 1:00 PM, he received a call from Nizamudin, who used to reside in his house as tenant and Nizamudin had told him that he was going to his work and at old GT Road, near brick plant, three persons had forcibly grabbed his neck and taken his two mobile phones and one of them was apprehended with the help of public, as he raised alarm and this CA No.10/2020 State Vs Salauddin Page No. 7/14 witness had arrived at spot and found public gathered there and one person who alongwith his associates had robbed away the mobile phone was already apprehended by the public. He had further deposed that he does not remember his name as the incident is quite old. He had further deposed that he alongwith complainant had taken the said apprehended person to the Police Station, where he was produced before the Police and Police had inquired from him and Nizamudin about the incident and he had narrated the incident to the police. He had further deposed that he cannot identify the accused persons.
17. This witness is alleged to have resiled from his statement recorded by the Police, so, Ld. Additional Public Prosecutor for State had sought permission to cross-examine this witness, Ld. Additional Public Prosecutor for State was allowed to cross-examine this witness by the Ld. Trial Court and during his cross-examination by the Ld. Additional Public Prosecutor for State, this witness had deposed that complainant Nizamuddin was residing as tenant in his house for the last three years. He had denied that the respondent/accused was apprehended by the public persons and disclosed his name as Salauddin or that names of his associates were Badshah and Prince and even during his cross- examination by Ld. Additional Public Prosecutor for State this witness had failed to identify the respondent/ accused in the Ld. Trial Court. He had denied that he was won over by the accused; or that he was threatened to cause injury; or that he is deposing falsely at the instance of the respondent/accused.
18. ASI Vijay Kumar had been examined as PW-4, who CA No.10/2020 State Vs Salauddin Page No. 8/14 was the investigating officer, had deposed about the investigation of the present case and proved the statement of complainant Ex.PW1/A, which was attested by him at Point-A and on the said statement/tehrir, he prepared the rukka Ex.PW4/A, which was bearing his signature at Point-A and handed over the same to the duty officer to get the case registered on the said rukka. He had also recorded statement of Rihan u/s 161 of Cr.P.C is Ex. PW4/B; he had also prepared site Plan Ex. PW1/B; and also proved the arrest Memo Ex. PW1/C and personal search memo Ex.PW1/D. Investigating Officer has also proved the pointing out memo as Ex.PW2/B and stated that statement of Ct. Sandeep was also recorded U/sec. 161 of Cr.P.C. and supplementary statement of the complainant was also recorded and on the next day respondent/accused was produced before the court, where one day police remand was allowed, but, neither the case property i.e above said mobile phones nor the associates of the accused were found and he had filed the chargesheet.
19. ASI Surendra Singh had been examined as PW-5, who was the Duty Officer, had deposed that on 06.02.2017, he was performing his duties as Duty Officer in the PS Seelampur and on that day at about 3:10 PM ASI Vijay Kumar had given him a rukka and he made endorsement on Rukka which is Ex.PW5/A and he had also identified his signature on it at point-A. On the basis of said Rukka, he had registered the FIR, Ex.PW5/B, bearing his signature at point A and after registration of FIR, copy of FIR and rukka were handed over to IO through Ct. Sandeep.
CA No.10/2020 State Vs Salauddin Page No. 9/14He had proved certificate u/s 65-B of Indian Evidence Act regarding the aforesaid FIR Ex.PW2/C and signature of the SHO thereon at point -A.
20. On the completion of the evidence of the prosecution, respondent/accused was examined u/s 313 of Cr. PC. wherein all the incriminating evidences brought on record by the prosecution were put before him and he had denied the correctness thereof and he has taken the plea that he is falsely implicated in the present case. The respondent/accused did not lead any evidence in his defence.
21. After hearing the Ld. Additional Public Prosecutor for the State and Ld. LAC for this respondent/accused, Ld. Trial Court was pleased to acquit the respondent/accused vide impugned judgment under appeal dated 07.12.2019.
22. Ld. Additional Public Prosecutor for State/appellant has submitted that even, if, the PW-3 Rehan has failed to identify the respondent/accused in Ld. Trial Court, even then, taking into consideration, the statement of the complainant, who had correctly identified to this respondent/accused and respondent/accused can be convicted U/sec. 392/34 of IPC, as the respondent/accused had robbed away two mobile phones of the complainant alongwith his other co-accused who could not be apprehended.
23. In the case in hand, the FIR was registered on the statement of the complainant Nizamuddin, who has been examined as PW-1 and no doubt that complainant Nizamuddin has identified to the accused in Ld. Trial Court, but, perusal of cross- examination of the PW-1 reveals that he had deposed that CA No.10/2020 State Vs Salauddin Page No. 10/14 respondent/accused was known to him and his residence is at Shahdara and during his cross-examination, he has also deposed that the accused did not steal mobile phone from his pocket and he did not make call at 100 number, after the incident. He has also admitted that site plan was prepared by the IO in the police Station. Since, the complainant has also deposed that accused did not steal mobile phone from his pocket. The perusal of the record reveals that this complainant has alleged that the occurrence had taken place at 12 noon. Even, in his cross-examination, he had claimed that occurrence had taken place at 12 noon, but, in his cross-examination, he had also deposed that he had taken the respondent/accused to the police station between 11:30 AM to 12 Noon, but, if the occurrence had taken place at 12 Noon, then how could this complainant take this accused to the Police Station between 11:30 AM to 12 Noon, it is not explained by the complainant. It is worthwhile to mention here that this complainant has claimed that he alongwith PW-3 Rehan Ahmad had taken the accused to the Police Station. PW-3 Rehan Ahmad had deposed in the Ld. Trial Court that on dated 06.02.2017, he had received the call of the complainant at 12:00 Noon to 1:00 PM and if, PW-3 had received the call of the complainant at about 12:00 Noon to 1:00 PM, then how could complainant take this accused to the Police Station at about 11:30 AM to 12 Noon? The complainant has claimed that he alongwith PW-3 Rehan Ahmed had taken this accused to the Police Station, but, the memo of arrest of this accused Ex.PW1/C reveals that place of arrest of this accused is mentioned as G.T.Road, Near Dharampura Red Light, CA No.10/2020 State Vs Salauddin Page No. 11/14 New Seelampur, Delhi, whereas the complainant has deposed in his cross-examination that he was never taken by the IO at the place of occurrence. The accused was produced in the police station by him and PW-3. The complainant has also deposed that the site plan was prepared by the IO in the police station. Since, complainant has deposed that he was not taken by the IO at the place of occurrence, so, it is clear that memo of Arrest Ex.PW1/C, pointing out memo Ex.PW2/B and site plan were prepared in the police station,thus, the testimony of the complainant who has been cross-examined as PW-1 is found to be self contradictory and also inconsistent to the documents relied upon by the prosecution and since, the case set-up by the prosecution is the complainant (who has been examined as PW-1) had taken the respondent/accused in the Police Station alongwith Rehan, who is the son of Landlord of this complainant and said Rehan has been examined as PW-3 who has failed to identify this respondent/accused, despite of cross- examination of this PW-3 by the Ld. Additional Public Prosecutor for the State and the said witness failed to support the case of the prosecution. Since, the testimony of the complainant is self contradictory and PW-3 who is also a public witness, has failed to support the case of the prosecution. The case set up by the prosecution that this respondent/accused was apprehended at the spot, but nothing incriminating was recovered from this respondent/accused.
24. Since their lordship of Hon'ble Supreme Court in "Dilawar Balu Kurane Vs. State of Maharashtra (Appeal (Crl.)8 of 2002)" was pleased to hold that :-
CA No.10/2020 State Vs Salauddin Page No. 12/14"when two views are possible, then the view in favour of the accused has to be adopted by the court".
25. Since, in the case of "State of West Bengal v. Orilal Jaiswal and another (1994) 1 Supreme Court Cases 73" , it was held that:-
"Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law".
26. In the case of "Mohan Singh and anr. v. State of M.P. (1999)1 Supreme Court Reports 276", it was held that :-
"the courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is onerous duty of the court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scott free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused."
27. In the case in hand, since the testimony of the CA No.10/2020 State Vs Salauddin Page No. 13/14 complainant is found to be self contradictory, so, same does inspire the confidence. Since, the site plan is also alleged to have been prepared by the IO while sitting in the Police Station and nothing incriminating has been recovered from this respondent/accused, so, Ld. Trial court has rightly acquitted to the respondent/accused as the prosecution has failed to prove its case beyond reasonable doubts. Therefore, this court does not find any force in submission of the Ld. Additional Public Prosecutor for the State/appellant.
28. Cumulative effect of the above discussions is that this court does not find any illegality, infirmity or perversity in the impugned judgment under appeal, which may require any interference therein. Therefore, the impugned judgment under appeal passed by the Ld. Trial Court is upheld and the appeal of the appellant is hereby dismissed, being devoid of merit.
29. Attested copies of this judgment be supplied to the parties free of cost.
30. The record of the Ld. Trial court is ordered to be returned with the attested copy of this order.
31. File be consigned to the record room.
Announced in the open court on 14.09. 2022.
(PAWAN KUMAR MATTO) Additional Sessions Judge (Special Judge) NDPS Act North East District,KKD Courts,Delhi 14.09.2022 CA No.10/2020 State Vs Salauddin Page No. 14/14