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Delhi District Court

State vs Naeem on 31 July, 2024

          IN THE COURT OF SH. KUMAR RAJAT,
     ADDL. SESSIONS JUDGE-07, SHAHDARA DISTRICT,
            KARKARDOOMA COURTS, DELHI


In the matter of :
CNR No. DLSH01-009998-2021
SC No. 351/2021
State Vs. Naeem
FIR No. 318/2021
PS Nand Nagri
U/s : 394/34 IPC, 397 IPC & 411 IPC
& 25/27 Arms Act
STATE

VS.

Naeem,
S/o Fakhruddin,
R/o H.No. E-117/151, Jhuggi Sunder Nagri,
Nand Nagri, Delhi.

                                                                   .... Accused
Date of Institution of case                    13.12.2021

Date of case reserved for Judgment 24.07.2024

Judgment Pronounced on                         31.07.2024

Decision                                       Acquitted u/s 394/ IPC,
                                               397 IPC & 411 IPC and
                                               25/27 Arms Act.


                            JUDGMENT

BRIEF FACTS OF THE CASE

1. As per the case of prosecution, on 02.03.2021, DD No. 104A was received and the IO reached JPC Hospital, where State Vs Naeem FIR No. 318/2021 PS Nand Nagri Page 1 of 32 he met complainant Sachin. Later, he recorded his statement, who alleged that he was running Electricity Shop at Shalimar Garden and on 02.06.2021, he was returning from his shop to his hosue at Tukmirpur Village, Delhi and at about 10 PM, when he was walking from Bhopura border towards Gagan Cinema Auto Stand to catch the auto and reached in front of Mandoli Jail Gate, then two boys came from front and one of them pushed him on the ground and other gave him leg blow in his stomach and one of them had hit on his stomach with sharp object and other one took out his mobile phone make MI (blue colour) from his pocket and both fled towards Sunder Nagri, Delhi.

2. An FIR was registered vide FIR No. 318/2021 dated 03.06.2021 in PS Nand Nagri u/s 392/34 IPC. After investigation, charge sheet was filed against accused Naeem u/s 392/394/397/411/34 IPC and after filing of charge sheet, cognizance of offences was taken against the accused Naeem.

CHARGE

3. Charges for the offences punishable u/s 394/34 IPC, 397 IPC & 411 IPC and 25/27 Arms Act was framed against accused Naeem by Ld. Predecessor of this Court on 20.01.2022. Accused pleaded not guilty and claimed for trial.

ADMISSION / DENIAL OF DOCUMENTS

4. Admission/denial of documents u/s 294 Cr.P.C. was conducted on 14.07.2023. Accused Naeem vide his statement recorded on the abovesaid date, had not disputed the following documents:

(i) Order of Judicial TIP of accused Naeem by Ld. MM, Ms. Kavita Bisht dated 10.06.2021, Ex.P2,

(ii) Judicial TIP proceedings by Ld. MM, Sh. Arvind Dev dated 16.06.2021 already Ex.PW1/C,

(iii) FIR No. 318/2021, PS Nand Nagri, Ex.P3,

(iv) DD No. 38A dated 03.06.2021, Ex.P4,

(iv) Certificate u/s 65B of Indian Evidence Act regarding FIR No. 318/2021, Ex.P5.

In view of above-said admission, the requirement of evidence of following witnesses was dispensed with :

(a) Ms. Kavita Bisht, Ld. MM (mentioned at Sl. No. 4 in the list of witnesses).

(b) Sh. Arvind Dev, Ld. MM (mentioned at Sl. No. 5 in the list of witnesses).

(c) ASI Naresh (mentioned at Sl. No. 10 in the list of witnesses).

PROSECUTION EVIDENCE

5. Prosecution examined 8 witnesses in its favour to prove the case.

6. PW1 Sachin Kumar deposed that he was working as Electrician at the shop 80 ft. Road, Shalimar Garden, Rose Park, Gate No. 4 and on 02.06.2021, at about 09:30 pm, he closed his shop and left for his house. One of his friends dropped him at Bhopura Chowk at his motorcycle and he waited for an auto, but it could not be found and started walking towards Gagan Cinema. When he reached at opposite gate no. 2, Nand Nagri Jail, two boys came from his backside and one of them caught hold of him and pulled him down on the road and second boy put some sharp edge weapon in his stomach and they asked him to handover his State Vs Naeem FIR No. 318/2021 PS Nand Nagri Page 3 of 32 mobile phone otherwise they would inflict injury in his stomach with their weapon.

7. PW1 further deposed that one boy took out his mobile phone from left side pocket of his wearing pant. After robbing his mobile phone make MI, they started running away from there. PW1 further deposed that it was knife, which was used by the robbers and both the robbers fled away towards Sunder Nagri. During the scuffle, he sustained injury in his stomach with the knife used by the robbers. One of the public persons made a call at 100 number and took him to the hospital for medical treatment. On the same day, he was discharged from the hospital and his statement was recorded by the IO, Ex.PW1/A. PW1 had also shown the place of incident to the police and site plan, Ex.PW1/B was prepared at his instance.

8. PW1 further deposed that on the next day, IO asked him to reach at Mandoli Jail for identification of suspect and he went to Mandoli Jail where IO was already present and he had participated in the TIP proceedings through video conferencing and correctly identified one of the robbers, who had used knife while committing robbery of his mobile phone on the date of incident.

9. PW1 further deposed that original TIP proceedings of accused Naeem is Ex.PW1/C. After two days of the incident, IO informed him about the recovery of his mobile phone. PW1 correctly identified accused Naeem in the Court as the same person, who used the knife at the time of commission of robbery and inflicted injury in his stomach and he also identified his State Vs Naeem FIR No. 318/2021 PS Nand Nagri Page 4 of 32 robbed mobile phone, Ex.P1.

10. PW2 Hazi Ishrar Siddiqui deposed that he was residing at H.No. N-290, Sunder Nagri, Delhi and doing private work. One day in the year 2021, he saw that some public persons were gathered in front of Mandoli Jail, Service Road, Delhi. He also noticed that one person was sitting there and he gave some water to him for drink. He called at 112 number and PCR van and police staff reached at the spot and took the injured (the person who was sitting) in GTB Hospital.

11. PW2 admitted in the cross-examination of Ld. Addl. PP that at about 10:00 pm, on 02.06.2021, he was present at his house and he heard some noise and he reached at the spot. PW2 stated the name of the person, who was sitting and was in injured condition, was Sachin.

12. PW3 Dr. Rihan Zaidi deposed that on 02.06.2021, he was posted as SR (General Surgery) at Jag Pravesh Hospital, Delhi. On that day, at about 11:10 pm, he examined the patient namely Sachin and as per his examination, following injuries were found on his person:-

i. Abrasion over right lumber region.

ii. Mild generalized tenderness present over right lumber region.

As per the injuries, the nature of injury was simple in nature, the MLC bearing no. 9430 of patient Sachin, Ex.PW3/A and his examination is from point A to A1 and his opinion is at point B and his signature on the above stated MLC at point C. State Vs Naeem FIR No. 318/2021 PS Nand Nagri Page 5 of 32

13. PW4 HC Sandeep Kumar deposed that on 05.06.2021, he was posted as constable at PS Nand Nagari. On that day, he joined the investigation of the present case with IO SI Bintu Sharma. Accused Naeem, who was in police custody, was taken out from the lock up. IO SI Bintu Sharma interrogated the accused and he disclosed that earlier he was misguiding (gumrah) the police by saying that the robbed mobile phone was taken by co-accused Hasan, but in fact that mobile has been kept by him in his house. Accused further disclosed that he was trying to sell the same, but no buyer could be found. IO recorded supplementary disclosure statement of accused, Ex. PW4/A.

14. PW4 further deposed that thereafter, accused took him and IO to his house at E-117/151, Jhuggi, Sunder Nagari, Delhi. Accused Naeem took out a mobile make Realme (color blue) beneath the bed of room situated at the ground floor of his above said house and disclosed that it is the same mobile, which was robbed from the victim. IO Bintu Sharma wrapped the aforesaid mobile in a white colour cloth, prepared a pullanda and sealed the same with the seal of BS and seized the pullanda vide seizure memo, Ex. PW4/B. After using the seal, it was handed over to him by the IO.

15. PW4 further deposed that accused Naeem took them to the place of incident i.e. in front of Mandoli Jail, Wazirabad Road, service Road, in front of Sulabh Sauchalay, Delhi. IO prepared the pointing out memo, Ex. PW4/C. Thereafter, they all returned to PS. IO recorded his statement u/s 161 Cr.P.C.

16. PW4 correctly identified the robbed mobile phone make Realme (blue colour) and FIR No. 318/21 of this case is written at the back of the mobile. The said mobile phone is Ex. P1. PW4 correctly identified the accused in the Court.

17. PW5 Lokesh deposed that he was 8th class pass and working as Electrician. He did not remember the exact year and month, however some years back, he gave his mobile phone to his friend Sachin in Rs. 10,000/-. The make of the said mobile phone was probably Samsung, but he did not remember the exact make. Later on, he was informed that the said mobile phone was snatched from Sachin and he was admitted in the hospital after receiving injuries.

18. PW6 Ct. Satya Narayan deposed that on 04.06.2016, he was posted as Constable at PS Nand Nagri and on that day, he joined the investigation of the present case. IO/SI Bintu Sharma handed over the accused to him and discharged HC Devender. Thereafter, IO/SI Bintu Sharma interrogated accused regarding the knife used during the commission of offence, at which accused disclosed that he had hidden knife in the field of Tahirpur Village. Thereafter, accused took them to the fields of Tahirpur Village and got recovered one knife near the bricks lying near a wall. The knife was in a white colour polythene and on checking the same, the same was found to be a buttondar knife.

19. PW6 further deposed that IO prepared the sketch of the knife dt. 04.06.2021, Ex.PW6/A. After measurement the total length and width of the knife was found to be 11 cm x 2.4 cm and State Vs Naeem FIR No. 318/2021 PS Nand Nagri Page 7 of 32 total length and width of handle of knife was found to be 12.3 cm x 2 cm and there were carvings (fool patiya) on the handle of knife. IO wrapped the above said knife along with white polythene in a white colour cloth and sealed the same with the seal of 'BS' and seized the same vide seizure memo, dt. 04.06.2021, Ex.PW6/B. Thereafter, accused was sent to the lock- up of PS Nand Nagri after his medical examination. Accused was kept in muffled face during the whole proceedings and accused was kept in lock-up. IO recorded his statement u/s 161 Cr.P.C. PW6 correctly identified the said buttondar knife, which was got recovered by him vide seizure memo, Ex.PW6/B. The knife is Ex.P2. PW6 correctly identified accused in the court.

20. PW7 Vipul Tiwari deposed that on 16.06.2021, he was posted as PSI at PS Nand Nagri and on that day, he joined the investigation of the present case. As per the directions of the SHO, he along with complainant Sachin went to the Mandoli Jail, Delhi for his judicial TIP and in the same, he identified by the complainant Sachin, mentioned from point B to B1 on the judicial TIP proceedings, Ex.PW1/C. Complainant Sachin correctly identified accused in Judicial TIP and PW7 collected the copy of judicial TIP proceedings and handed over the same to the IO/SI Bintu Sharma. IO/SI Bintu Sharma recorded his statement u/s 161 Cr.P.C.

21. PW8 SI Bintu Sharma deposed that on 02.06.2021, he was posted as SI at PS Nand Nagri and on that day, on receiving DD No. 104-A, dt. 02.06.2021, Mark-X, he along with Ct. Kuldeep went to the spot i.e. on the service road in front of State Vs Naeem FIR No. 318/2021 PS Nand Nagri Page 8 of 32 Mandoli Jail, near Samuday Bhawan, Sundar Nagri where they came to know that the injured had already been taken to Jag Parvesh Hospital. Thereafter, they went to the JPC Hospital where injured/complainant Sachin was found under treatment. He collected the MLC of injured Sachin, who requested that he would give his statement later on as he was having pain.

22. PW8 further deposed that on the next day i.e. 03.06.2021, at about 08:30 am, complainant/injured Sachin came at the PS and gave his statement, Ex.PW1/A and he prepared tehrir/rukka, Ex.PW8/A and handed over the tehrir to duty officer, who registered the FIR and he handed over the original rukka and copy of FIR to him.

23. PW8 further deposed that he along with Ct. Kuldeep and complainant went to the above said spot and prepared the site plan, Ex.PW1/B bearing his signature at point B and Ct. Kuldeep at point C at the instance of complainant Sachin. They searched for the accused persons, but in vain and he recorded the statements of complainant, Hazi Ishrar and Ct. Kuldeep u/s 161 Cr.P.C. On 04.06.2021, one secret informer came at the PS and disclosed that one of the accused, who had committed robbery in the present case, could be found Pili Mitti Park, Tahir Pur, Delhi. He along with HC Devender and secret informer went to Pili Mitti Park, Tahir Pur where on the identification of secret informer, accused was apprehended and then arrested vide arrest memo, Ex.PW8/B bearing his signature at point A and signature of HC Devender at point B and personal search of accused was also conducted vide memo, Ex.PW8/C. State Vs Naeem FIR No. 318/2021 PS Nand Nagri Page 9 of 32

24. PW8 further deposed that he also recorded disclosure statement of accused vide statement, Ex.PW8/D. Accused disclosed that on 03.06.2021 at about 10:00 pm, he along with co-accused Hasan had committed robbery with complainant by using the knife and also caused injuries to him and they had robbed complainant's mobile make realme and accused had hit complainant in his stomach/abdomen with the knife and after the incident, accused had hidden the knife in the fields of Tahir Pur Village, Delhi and accused could get recovered the same.

25. PW8 further deposed that the robbed mobile phone had been sold by co-accused Hasan and accused had taken the sale amount Rs. 1,000/- from Hasan. Thereafter, on the basis of information given by accused, they i.e. PW8 and Ct. Satya Narayan were taken by accused to field of Village Tahir Pur, Delhi and then, accused got recovered one knife near the bricks lying near a wall. The knife was in a white colour polythene and on checking the same, the same was found to be a buttondar knife. Thereafter, he prepared the sketch of the knife dt. 04.06.2021, Ex.PW6/A.

26. PW8 further deposed that after measurement the total length and width of the knife was found to be 11 cm x 2.4 cm and total length and width of handle of knife was found to be 12.3 cm x 2 cm and there were carvings (fool patiya) on the handle of knife and he wrapped the above said knife along with white polythene in a white colour cloth and sealed the same with the seal of 'BS' and seized the same vide seizure memo, dt. 04.06.2021, Ex.PW6/B. Accused was taken the PS and sent to the State Vs Naeem FIR No. 318/2021 PS Nand Nagri Page 10 of 32 lock-up of PS Nand Nagri after his medical examination. Accused was kept in muffled face during the whole proceedings and kept in lock-up behind the curtain. PW8 deposited the above said knife in the malkhana and he recorded the statements of Ct. Satya Narayan and HC Devender u/s 161 Cr.PC. Accused produced before the Hon'ble Court and one day PC remand of accused was given. They went in search of co-accused, but in vain.

27. PW8 further deposed that on the next day i.e. 05.06.2021, he again interrogated accused Naeem in the presence of Ct. Sandeep and he disclosed that the robbed mobile phone had been hidden by him at his house and he had earlier wrongly stated that the mobile phone was taken by co-accused Hasan and disclosed that he could get recovered the mobile phone from his house. He recorded the supplementary statement, Ex.PW4/A.

28. PW8 further deposed that on the basis of information given by accused, he took them to his house i.e. E-117/151, Jhuggi, Sundar Nagri, Delhi and got recovered robbed mobile phone of realme, blue colour beneath the bed placed in a room at the ground floor of the above said house and wrapped the same in a white colour cloth and sealed with the seal of 'BS' and then seized vide seizure memo, Ex.PW4/B and seal after the use, was handed over to Ct. Sandeep. Accused took them to the place of incident i.e. in front of Mandoli Jail, Service Road, near Samuday Bhawan and Sauchalya, Sundar Nagri, Delhi. PW8 prepared the pointing out memo, Ex.PW4/C. Then, accused was taken to the PS. Above said mobile phone was deposited in the State Vs Naeem FIR No. 318/2021 PS Nand Nagri Page 11 of 32 malkhana and he recorded the statement of Ct. Sandeep u/s 161 Cr.PC.

29. PW8 further deposed that on 10.06.2021, he moved an application for judicial TIP of accused Naeem, which was fixed for 16.06.2021, but due to his pre-occupation at Hon'ble High Court of Delhi, PSI Vipul Tiwari got conducted his judicial TIP and handed over the copy of TIP proceedings to him. PW8 recorded statements of complainant Sachin, Lokesh and PSI Vipul Tiwari u/s 161 Cr.PC. PW8 searched for the co-accused Hasan, but in vain. After completion of the investigation, he prepared the charge-sheet and submitted it before the court along with its all enclosures, Ex.PW8/E and he had brought a copy of DAD notification dt. 17.02.1979, Mark-X1.

30. PW8 had correctly identified the said buttondar knife, Ex.P2, which was got recovered from accused, which was seized vide seizure memo, Ex.PW6/B. He had also correctly identified the one mobile phone make realme, blue colour, Ex.P1, which was got recovered from accused and seized vide seizure memo Ex.PW4/B . PW8 correctly identified accused in the court.

STATEMENT OF ACCUSED u/s 313 Cr.P.C.

31. Statement of the accused Naeem was recorded u/s 313 Cr.PC on 11.07.2024 and he denied the incriminating evidence put to him and stated that all the witnesses deposed against him on the instance of IO and IO of the present case released the real culprits and falsely implicated him.

APPRECIATION OF EVIDENCE, ANALYSIS OF WITNESSES AND FINDING Arguments of Ld. Amicus Curiae for accused

32. Ld. Counsel for the accused argued that accused has been falsely implicated by the police and complainant has not supported the case of prosecution and in his cross-examination, he admitted that accused was shown by the police in the PS and IO had told that accused Naeem had robbed him and that he had identified the accused in the TIP on the instruction of police officials. So, the said TIP in which the complainant had identified the accused has no value in the eyes of law.

It is further submitted that the complainant stated that there was no street light at the spot and it was dark and he was unable to see the face of assailants, who robbed his mobile and stabbed him and thus, the identification of accused by the complainant in his examination in chief cannot be relied upon particularly when he admitted that police told him that Naeem had robbed him on the date of incident. It is further submitted that the said mobile was not in the name of complainant Sachin and PW5 had deposed that he had not issued any receipt to the complainant when he had given his phone to him of Rs. 10,000/- and he came to know that said mobile was snatched, so his testimony cannot be relied. It is further submitted that PW2 is also hostile and nothing has come in favour of prosecution in his cross-examination by Ld. APP. The injury opined is simple in nature and PW3 Dr. Rihan Zaidi has admitted in his cross- examination that the said injury could be possible due to fall. The State Vs Naeem FIR No. 318/2021 PS Nand Nagri Page 13 of 32 police officials are interested witnesses and no recovery of knife has been effected on the disclosure of accused as it was done from an open field accessible to all and there was no independent witness and the said knife was not even put to the PW1/complainant so that he could identify the knife used in the crime. The other co-accused as alleged in the charge-sheet has not been arrested or produced before the Court, which makes the prosecution's case doubtful. Even the robbed mobile has not been proved to be recovered from the accused and thus, prosecution could not prove the charge u/s 394/34 IPC, 397/411 IPC 25/27 Arms Act. The accused is an auto driver and police officials used to jealously on account of money.

Arguments of Ld. Addl. PP for the State

33. Ld. Addl. PP for the State argued that accused had committed the robbery with complainant by using knife and knife as well as the robbed article i.e. mobile phone of complainant were recovered from the possession of accused and complainant has identified his mobile phone during trial and accused was correctly identified by the complainant as the person, who had used knife while committing the robbery and other police officials and the complainant are consistent in their statements, but complainant turned hostile in his cross-examination though he had supported the case of prosecution in examination in chief, which can be relied upon to convict the accused particularly when the complainant had also identified the accused in the judicial TIP and thus, there is no doubt regarding the identity of the accused. The injury to the complainant has also been proved State Vs Naeem FIR No. 318/2021 PS Nand Nagri Page 14 of 32 from his MLC as deposed by PW3 Rihan Zaidi and thus, the prosecution has proved the charge of Section 394/34 IPC, 397/411 IPC 25/27 Arms Act.

34. I have heard the rival contentions and perused the records.

35. The prosecution has examined 8 witnesses including PW1 complainant/victim.

36. The charges against accused is u/s Section 394/34 IPC, 397/411 IPC 25/27 Arms Act.

394 IPC. Voluntarily causing hurt in committing robbery.

If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

397 IPC. Robbery, or dacoity, with attempt to cause death or grievous hurt:-

"If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years".

34. Acts done by several persons in furtherance of common intention.-

When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

37. As per the initial complaint of PW1 Sachin/complainant, who stated to the police that he was running electricity shop at Shalimar Garden and on 02.06.2021, he was returning home from the shop and at about 10 PM, he was walking towards Gagan Cinema from Bhopura to catch the auto and in the meantime, when he reached near Manodli Jail Gate, then two boys came and one of them made him fall in the ground by catching him from behind and the other gave leg blow on his stomach and one of them hit his stomach with a sharp object and other one snatched his mobile phone make MI (blue colour) from his pocket and they both fled towards Sunder Nagri. PW1 in his examination in chief proved his complaint as PW1/A.

38. PW1 in his deposition stated the same date and place of the alleged incident, but there is slight difference in the time as in his deposition, he stated that it was about 9.30 PM and in Ex.PW1/A, the time of offence was 10 PM, but it is a minor difference. PW1 deposed that out of the two boys, one caught hold of him and pulled on the road and another put sharp edged weapon in his stomach and one of them took his mobile from left side of his wearing pant after warning him that if he did not hand over the same, then they would inflict injury in his stomach. PW1 was not sure, if the weapon used was knife, but again said, it was the knife and he sustained injury in his stomach during the scuffle with said knife and public persons made 100 number call and he had shown the spot to the police, who prepared site plan, Ex.PW1/B at his instance and he identified the accused in TIP at Mandoli Jail, which is Ex.PW1/C and he correctly identified his State Vs Naeem FIR No. 318/2021 PS Nand Nagri Page 16 of 32 mobile phone, Ex.P1 and also the accused Naeem, who used the knife at the time of commission of robbery and inflicted injury to him.

39. During his cross-examination, PW1 did not support the case of prosecution and stated that there was no street light at the spot and there was dark, so he could not see the face of the assailants, who robbed his mobile and stabbed him. This version of PW1 makes the identification of accused in examination in chief doubtful particularly when PW1 was cross-examined by Ld. APP and he denied the suggestion that there was no dark at the spot at the time of incident and he had seen the face of accused Naeem during the incident or that he had deposed at the instance of accused in his cross-examination that he has not seen his face at the time of incident and also denied the suggestion of Ld. APP that on 12.05.2022 in his deposition before the Court, he had correctly identified accused Naeem as one of the assailants, who robbed him rather he volunteered that he had identified accused Naeem in Court as per directions of IO.

40. TIP OF ACCUSED NAEEM:

The relevancy of TIP is explained in Section 9 of Indian Evidence Act and later on Section 54A Cr.P.C. was also incorporated regarding the TIP proceedings.

Section 9 of the Indian Evidence Act reads as under :

Facts necessary to explain or introduce relevant facts - Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant act, or which establish the identity of anything or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, State Vs Naeem FIR No. 318/2021 PS Nand Nagri Page 17 of 32 or which show the relation of parties by whom any such fact was transacted, are relevant in so far they are necessary for that purpose.

41. Section 54A Cr.P.C. Identification of person arrested.-

Where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence, the Court, having jurisdiction, may on the request of the officer in charge of a police station, direct the person so arrested to subject himself to identification by any person or persons in such manner as the Court may deem fit.

Provided that, if the person identifying the person arrested is mentally or physically disabled, such process of identification shall take place under the supervision of a Judicial Magistrate who shall take appropriate steps to ensure that such person identifies the person arrested using methods that person is comfortable with:

Provided further that if the person identifying the person arrested is mentally or physically disabled, the identification process shall be videographed.

42. As per Section 9 of the Indian Evidence Act, the TIP proceedings where accused persons can be identified is relevant and corroborative proceedings. Provided, the TIP should be properly conducted and the accused must not have been shown to the witnesses prior to the proceedings.

Test Identification Parade - Necessity: Such test is conducted to test the veracity of the witness and his capacity to identify the unknown persons. Test Identification Parade is primarily meant for the investigation purposes.

43. Hon'ble Supreme Court of India in Ramanathan Vs. State of Tamil Nadu, AIR 1978 SC 1201, has held that the purpose of test identification parade is to find out whether the accused is perpetrator of the crime or not. If the name of the offender is not mentioned by the eye-

witnesses, then in such circumstances, such evidence becomes more important.

In Ram Babu Vs. State of UP, AIR 2010 SC 2143, Hon'ble Supreme Court of India has held that purpose of test identification parade is to test credibility and trustworthiness of the evidence of the witness in Court.

In Har Nath Singh Vs. State of MP, AIR 1970 SC 1619, Hon'ble Supreme Court of India observed that TIP serves two purposes (i) to satisfy the investigating authorities that certain person not previously known to witness was involved in the offence and (ii) to furnish evidence to corroborate the testimony which the witness concerned tenders before the Court.

44. In Mulla and Anr. Vs. State of UP, (2010) 3 SCC 508 in Paras 44, 45 and 55, Hon'ble Supreme Court of India observed the object of conducting a TIP is threefold. First, to enable the witnesses to satisfy themselves that the accused whom they suspect is really the one who was seen by them in connection with the crime. Second, to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. Third, to test the witnesses memory based on first impression and enable the prosecution to decide whether all or any of them could be cited as eyewitnesses to the crime.

Evidentiary value of TIP: In George Vs. State of Kerala, AIR 1998 SC 1376, the Court held that TIP corroborates the testimony of the witness and the identification of the accused.

45. In Judgment dated 11.11.2022 in Criminal Appeal No. 1864-1865 of 2010 titled as Gireesan Nair & Ors. Etc Vs. State of Kerala, Hon'ble Supreme Court of India has held that evidence of TIP is admissible u/s 9 of the Indian Evidence Act, however, it is not a substantive piece of evidence. Instead, it is used to corroborate the State Vs Naeem FIR No. 318/2021 PS Nand Nagri Page 19 of 32 evidence given by witnesses before the Court of law at the time of trial. Hon'ble Supreme Court of India relied upon 'Shaikh Umar Ahmad Shaikh and Anr. Vs. State of Maharashtra', (1998) 5 SCC 103, wherein it was held that under such circumstances, when the accused were already shown to the witnesses, their identification in the Court by the witnesses was meaningless.

46. In this case vide TIP proceedings dated 16.06.2021, Ex.PW1/C, the accused Naeem was produced by ASI Vipul Tiwari and it was conducted by Sh. Arvind Dev, Ld. Jail Duty MM and in the said proceedings, PW1 Sachin had correctly identified accused Naeem in the TIP proceedings.

Then, in his examination in chief also PW1 had correctly identified accused Naeem as the one, who had used knife at the time of robbery and inflicted injury on his stomach, but in his cross-examination by accused, he admitted that due to dark, in the absence of street light, he was unable to see the assailants and accused Naeem was in muffled face in the PS and police officials told that he had robbed PW1 and also told that PW1 had to state the fact that Naeem was the person, who robbed him on the date of incident in the TIP proceedings in jail. PW1 also admitted that police officials did not show any other person as one of the assailants, who robbed him. The said version of PW1 makes the said TIP doubtful in the light of 'Shaikh Umar Ahmad Shaikh (supra) and TIP is not a substantive evidence and is always corroborating in nature as held in Gireesan Nair (supra). In his cross-examination by Ld. APP, he denied that he identified the accused in TIP proceedings out of his own free will and without fear of police officials or that there was no dark at State Vs Naeem FIR No. 318/2021 PS Nand Nagri Page 20 of 32 the spot on the date of incident and he denied that he had correctly identified accused Naeem in his examination in chief. Further Ld. APP has made a suggestion that police officials did not show the accused to him in the PS prior to judicial TIP, which was denied by PW1 and it shows that PW1 was firm on the point that prior to TIP, the accused Naeem was shown to him in the police station and it vitiates the TIP as it creates a reasonable doubt against the prosecution.

47. Another charge against the accused u/s 411 IPC and 25/27 Arms Act.

48. PW1 has deposed in his examination in chief that one of the assailants had put sharp object in his stomach, but he was not shown, if it was knife as he stated that perhaps it was knife, but again said he was shown that it was knife, but the said knife, Ex.P2 was not shown to the PW1 during his examination in chief to prove that it was the same knife, which was used in the commission of crime against him by the accused persons.

49. Another charge against accused is u/s 25/27 Arms Act 25 Arms Act: Punishment for certain offences.- [1] Whoever-

(a) manufacturers, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5.

27 Arms Act: Punishment for using arms etc. (1) Whoever uses any arms or ammunition in contravention of Section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to State Vs Naeem FIR No. 318/2021 PS Nand Nagri Page 21 of 32 seven years and shall also not be liable to fine. (2) Whoever uses any prohibited arms or prohibited ammunition in contravention of Section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.

(3) Whoever uses any prohibited arms and prohibited ammunition or does any act in contravention of Section 7 and such use or act results in the death of any other person, shall be punishable with death.

50. RECOVERY OF KNIFE:

Section 27 Indian Evidence Act:

How much of information received from accused may be proved:

PROVIDED that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

51. In this case as per the deposition of PW6 Ct. Satya Narayan, accused Naeem was in police custody and he disclosed before IO/SI Bintu Sharma on interrogation regarding knife used in the crime that he had hidden the same in the field of Tahirpur village and then took them to the fields of Tahirpur village and got recovered one knife near the bricks lying near a wall, which was in white colour polythene and it was the buttondar knife and its sketch, Ex.PW6/A was prepared and its total length and width was found to be 11 x 2.4 cm and total length and width of handle of knife was found to be 12.3 x 2 cm and there were carvings State Vs Naeem FIR No. 318/2021 PS Nand Nagri Page 22 of 32 (phool patiya) on the same and the same was sealed by the IO and seized vide seizure memo dated 04.06.2024, Ex.PW6/B and the knife, Ex.P2 was correctly identified by PW6 and his version is corroborated by PW8 IO/SI Bintu Sharma, who also identified the knife seized by him and he had brought the DAD notification dated 17.02.1979, Mark X1, which was violated by accused and he was liable u/s 25/27 Arms Act.

In his cross-examination PW6 admitted that PW8 IO/SI Bintu Sharma had not prepared any site plan of place of recovery of knife and did not take any photograph or video at the time of recovery and IO did not join any public witness during recovery proceedings and that no blood stain was found on knife or polythene bag. It shows that the IO had not even tried to make any public witness to the recovery of knife, which was made from an open field and near the wall and it was accessible by all and IO even did not bother to take any video/photo of the proceedings.

52. PW8 has deposed that the disclosure of accused was recorded on 04.06.2024, Ex.PW8/D and that he disclosed about his involvement in the present case and that he had hidden the knife used in the crime in the field of Tahirpur village, Delhi and he can get the same recovered and in the presence of PW6, he had got recovered the said knife near the bricks lying near the wall and PW8 in his cross-examination admitted that no independent public witness was joined at the time of recovery of knife and volunteered that he requested some of them, but they went away without disclosing their names and addresses. This is State Vs Naeem FIR No. 318/2021 PS Nand Nagri Page 23 of 32 not stated by PW6 that IO had requested public persons to join recovery proceedings. IO could have taken at least complainant, if no other witness was found and IO could have also sent a request to any bank or government institutions to appoint a person for recovery, but he did not do so and no explanation has been given in this regard.

53. Hon'ble High Court of Delhi in Mohammad Burhan Vs. Directorate of Revenue Intelligence, 'MANU/DE/3131/2017' held that joining of independent witness is not a mere a formality; it is a vital safeguard to avoid false implication of individual. In number of cases either no independent public witnesses are associated on the pretext that none of them is available; in some cases only passerbyes are requested to join the investigation. Non-examination of independent public witness in the instant case is serious flaw and adverse inference is to be drawn against the prosecution for withholding them.

In Ravindra Nath Prusty Vs. State of Orissa, 1984 Cr.LJ 1392, Hon'ble Orissa High Court held that: in searching a person, searching officer and others assisting him should give their personal search to the accused before searching the person of accused to avoid the possibility of implanting the object. In the absence of same and independent witness, search was illegal and conviction is also vitiated".

In the instant case neither any personal search was offered by the police officials at the time of recovery nor any independent witness was made a witness, which creates doubt on the recovery of knife from public place i.e. field.

54. In State Vs. Kripa Ram 2003 (12) SCC 675, it was held that recoveries by themselves would not take the prosecution case any further where evidence of eye-witnesses was not acceptable.

In Antar Singh Vs. State AIR 2004 SC 2865 , it was held that recovery from an open space would not always render it vulnerable, but an information leading to discovery of fact is one link in the chain of proof and other link must be forged in legally permissible manner. There was recovery of a pistol from an open space, but on facts the discrepancies and shortcomings in evidence considerably corrode the credibility of prosecution version.

55. In the present case, the said knife was not put to the PW1/complainant Sachin during his deposition and also no public person was joined as witness, no photography or videography of the recovery of knife has been done and recovery was made from the field of village Tahirpur and no site plan of the said recovery was made by the IO and PW6, who was with IO at the time of recovery deposed that PW8 IO had not tried to rope in any public witness, but PW8 stated that he tried to do so, but no one came forward. So, the recovery is doubtful and even if it is considered, then also it cannot be said that the said knife was used in the commission of crime with the PW1, who was not shown the said knife to connect the same with the alleged crime. Thus, prosecution could not prove beyond reasonable doubt that the accused used the said knife in the commission of crime or that it was recovered from him or at his instance and ingredients of Section 25/27 Arms Act are not proved accordingly.

56. Recovery of Mobile Phone qua charge u/s 411 IPC 411 IPC. Dishonestly receiving stolen property:-

Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

57. In the present case, PW1 deposed that on the above date, time and place, two boys by using the knife and injuring him took out his mobile phone from left side of his wearing pant and it was MI phone and he had identified the seized mobile phone, Ex.P1. In his cross-examination PW1 admitted that he was not having the bill of mobile set, which was robbed during the interrogation and volunteered that same was destroyed and also admitted that mobile was not purchased in his name. In his cross-examination by Ld. APP, PW1 denied the suggestion that Naeem was the same person, who had robbed him on the date of said incident.

58. PW5 Lokesh deposed that he had given his phone to his friend Sachin for Rs. 10,000/-, which was Samsung make phone and later he came to know that said mobile phone was snatched from Sachin and he was admitted in hospital after receiving injuries. The version of PW5 shows that he had sold Samsung mobile to PW1 Sachin, which was robbed during the said incident, which is contrary to the version of prosecution that said mobile was of MI company and as per prosecution, such incident had not happened with Sachin twice in life, which shows that Sachin was carrying Samsung mobile, which was robbed and the PW5 was not re-examined by prosecution that said phone was of MI company and not Samsung mobile. In his cross-

examination PW5 admitted that no receipt was issued to the complainant Sachin or police. The version of PW5 is contrary to the version of PW1 that the said bill of mobile was destroyed as PW1 has not stated the true and correct facts in his testimony State Vs Naeem FIR No. 318/2021 PS Nand Nagri Page 26 of 32 before the Court or police that he never had any bill of the said mobile.

59. PW4 HC Sandeep deposed that accused had misguided the police by saying that robbed mobile was taken by co-accused Hasan and his supplementary disclosure statement, Ex.PW4/A were recorded and then, accused took PW4 and IO to his house at E-117/151, Jhuggi, Nand Nagri, Delhi and took out Realme mobile from his bedroom at ground floor, which was seized vide seizure memo, Ex.PW4/B. PW8 IO deposed that on 05.06.2021, he interrogated accused Naeem again in the presence of Ct. Sandeep and then, he disclosed that he had hidden the robbed mobile phone at his house and earlier he had stated that it was taken by co-accused Hasan and then he got the recovered mobile from his house beneath the bed placed in a room.

60. The supplementary disclosure, Ex.PW4/A dated 05.06.2026 has no mention of any independent witness and he has not even stated the place of the house where it was hidden and the co-accused Hasan admittedly could not be found by the police. The testimony of PW5 is contrary to the testimony of PW1 and seizure of mobile phone, Ex.PW4/B as in the latter the mobile phone is shown as Realme, but PW5 stated that it was Samsung. Thus, prosecution failed to prove that the Sachin was carrying the robbed mobile or that said mobile was robbed by accused Naeem and thus, recovery of the said mobile becomes doubtful.

61. PW2 Hazi Ishrar Siddiqui, who is another public witness, turned hostile and he could not state the date and month State Vs Naeem FIR No. 318/2021 PS Nand Nagri Page 27 of 32 of offence and stated the year of offence correctly as 2021 and that in front of Mandoli Jail, Service Road, he had noticed one person was sitting and he gave water and called 112 number and PCR came and took him to GTB Hospital. This witness does not prove any fact against the accused or the incident as he had not witnessed the same. PW2 was cross-examined by Ld. APP wherein he admitted that on 02.06.2021 at about 10 PM, after hearing some noise at his house, he went to the spot and saw Sachin sitting there, but denied that two persons fled from the spot after seeing him or that Sachin had stated to him that two persons have stabbed him with knife and robbed his mobile, which further creates doubt on the robbed mobile or the role of accused Naeem and PW2 denied the contents of his statement 161 Cr.P.C., Mark Z, even after he was confronted with the same. Thus, prosecution could not prove beyond reasonable doubt the charge u/s 411 IPC against the accused.

MEDICAL EVIDENCE

62. PW3 Dr. Rihan Zaidi deposed that he had examined PW1 Sachin on 02.06.2021 in JPC Hospital, Delhi and abrasion over right lumber region and mild generalized tenderness over it was found and he opined the nature of injury as simple in the MLC, Ex.PW3/A. In his cross-examination he admitted that the injured was under the influence of liquor and there is possibility of said injury being occurred due to fall, which shows that the said injury to the PW1 may have occurred due to fall under the influence of liquor as it had not been proved that injury was State Vs Naeem FIR No. 318/2021 PS Nand Nagri Page 28 of 32 caused as a result of uses of knife by the accused.

63. The Hon'ble Supreme Court in 'Rai Sandeep @ Deepu Vs. State of NCT of Delhi, AIR 2012 SC 3157, held the concept of sterling witness and observed in para-22 as under:

"22. In our considered opinion, the "sterling witness "should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core State Vs Naeem FIR No. 318/2021 PS Nand Nagri Page 29 of 32 spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged".

64. In Lallu Vs. State, (2003) 2 SCC 401, it was held that oral testimony may be classified into three categories (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. In the third category of cases, the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony.

From the testimony of PW1 Sachin, it is apparent that he is not a witness of sterling quality and as such his evidence falls under the category (iii) as mentioned in Lallu (Supra) and corroboration is required, but neither the testimony of PW2, PW3 and PW5 is corroborative rather they have also weakened the case of prosecution as discussed in the preceding paras.

DEFENCE OF THE ACCUSED

65. Statement of the accused Naeem was recorded u/s 313 Cr.PC on 11.07.2024 and he denied the incriminating evidence put to him and stated that since he was auto driver, the police officials used to have jealously with him on account of money. Though the defence of accused does not appear to be reasonable, but the prosecution has not laid the foundational facts required for the offences charged for the accused to rebut the same and thus, the defence of the accused is not that important considering the testimonies of prosecution witnesses as discussed above.

66. In Kailash Gour and Ors. Vs. State of Assam reported in MANU/SC/1505/2011, (2012) 2 SCC 34, Apex Court has observed that an accused is presumed to be innocent till he is proved guilty beyond a reasonable doubt is a principle that cannot be sacrificed on the altar or inefficiency, inadequacy or inept handling of the investigation by the police. The benefit arising from any such faulty investigation ought to go to the accused and not to the prosecution.

67. In Subramanya Vs. State of Karnataka, dt.

13.10.2022, in Crl. Appeal No. 242/2022, Hon'ble Supreme Court of India has held that it is settled principle of law that when two views are possible from the prosecution evidence, the one which is favourable to the accused shall have to be taken and the benefit of doubt shall have to be given to the accused.

68. The Hon'ble Supreme Court has time and again held that onus and duty to prove the case against the accused is upon the prosecution and prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the accused, the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may be made to the Judgments titled as 'Nallapati Sivaiah Vs. Sub Divisional Officer, Guntur', reported as VIII (2007) SLT 454 (SC) in this respect. Reference may also be made to the Judgment titled as 'Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan', reported as (2013) 5 SCC 722, wherein it was held that the large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and State Vs Naeem FIR No. 318/2021 PS Nand Nagri Page 31 of 32 the basic and golden rule must be applied and the Court must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused persons.

Accused in this case is entitled to benefit of doubt qua Sections 394/34 IPC, 397 IPC & 411 IPC and 25/27 Arms Act CONCLUSION

69. In the totality of the circumstances brought on record by way of evidence, it is observed that the prosecution has failed to prove its case beyond reasonable doubt against the accused Naeem qua offences punishable u/s 394/34 IPC, 397 IPC & 411 IPC and 25/27 Arms Act, thus, a benefit of doubt is given to the accused on the basis of above-noted principles and facts established on record.

70. Consequently, the accused Naeem is acquitted of the offences u/s 394/34 IPC, 397 IPC & 411 IPC and 25/27 Arms Act.

Bail bonds cancelled. Surety is discharged.

The accused is directed to furnish the bond u/s 437-A Cr.P.C. in the sum of Rs. 10,000/- with one Surety of like amount.

File be consigned to Record Room after necessary Digitally signed compliance. KUMAR by KUMAR RAJAT RAJAT Date:

PRONOUNCED IN OPEN COURT 2024.07.31 17:30:56 +0530 ON THIS 31st OF JULY 2024. (KUMAR RAJAT) ASJ-07, Shahdara, KKD Delhi/31.07.2024 State Vs Naeem FIR No. 318/2021 PS Nand Nagri Page 32 of 32