Delhi District Court
State vs . Mohd. Rizwan And Anr. on 8 January, 2019
IN THE COURT OF AASHISH GUPTA
METROPOLITAN MAGISTRATE07, SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI
FIR No. : 378/16
P.S. : Sunlight Colony
u/s : 394/411/34 IPC
State Vs. Mohd. Rizwan and Anr.
a. The Sl. No. of the case : 97410/16
b. The date of commission of offence : 19.08.2016
c. The date of Institution of the case : 08.10.2016
d. The name of complainant : Sh. Jaidev Singh S/o Sh.
Sabbon Sarkar
e. The name of accused : 1. Mohd. Rizwan
S/o Mohd. Nasir
R/o H. No. T86, Vikash
Choudhary ka Makan, Sarai
Kale Khan, New Delhi
2. Imtiyaz Ali @ Dukhiya
S/o Mohd. Islam
R/o H. No. T52, Sunny Ka
Makan, Sarai Kale Khan, New
Delhi
f. The offence complained of : 394/411/34 IPC
g. The plea of accused persons : Pleaded not guilty
h. Arguments heard on : 15.11.2018
i. The final order qua both the : Both accused convicted u/s.
accused 394/34 IPC and
Accused Imtiyaz Ali @
Dukhiya convicted u/s. 411 IPC
also.
j. The date of judgment : 08.01.2019
FIR No. 378/16 State V/s. Mohd. Rizwan and Anr. 1 of 17
JUDGMENT
1. Accused Mohd Rizwan and Imtiyaz Ali @ Dukhiya ['the accused persons'] are alleged to have committed robbery of a bag containing clothes and Election ID Card from one Jai Dev ['victim' / 'complainant']. In the process of committing the said robbery they are also alleged to have voluntarily caused simple injury on the body of the said victim by hitting him with a brick. The incident is stated to have taken place on 18.08.2016 at Sarai Kale Khan bus stop at about 06:30 pm.
2. It is alleged by the prosecution that while the aforesaid victim was answering nature's call, the aforesaid accused persons alongwith one other accused (not arrested and chargesheeted) surrounded the accused and while one of them held him, another hit him with a piece of brick. The third accused is stated to have removed his bag containing clothes and also removed his Election ID Card. Thus, as per the prosecution, both the accused herein acted in furtherance of common intention to rob the aforesaid property from the body of the victim.
3. It may be noted that soon after the incident, the victim called out for help and approached a nearby PCR van. The PCR van officials helped the victim and when the aforesaid accused persons were stepping out from the forest area near the spot of incident, one accused Rizwan was FIR No. 378/16 State V/s. Mohd. Rizwan and Anr. 2 of 17 apprehended at the instance of the victim. The PC Remand of the said accused was taken and at the instance of this accused, accused Imtiyaz Ali @ Dukhiya was arrested. After the arrest of this accused, the bag with clothes of the complainant and his Election I Card were recovered at the instance of accused Imtiyaz Ali @ Dukhiya. Thus, as per the police investigation both accused herein were responsible for the aforesaid incident and thus as per the prosecution, offences made punishable u/s. 394/411/34 IPC were committed by the accused persons. Thus, on the aforesaid allegations, police had filed charge sheet before this court u/s. 394/411/34 IPC.
4. Charges for commission of offences punishable u/s 394/34 IPC was served upon both the accused and charge for commission of offence punishable u/s 411 IPC was served upon accused Imtiyaz Ali @ Dukhiya to which they pleaded not guilty and claimed trial.
5. Prosecution has examined the following witnesses in support of its case:
Sr. Witness Nature of deposition/documents produced/proved No. Description i PW1 Jai Documents produced/proved:
Dev A. Complaint Ex. PW1/A B. Arrest and personal search memo of accused Rizwan Ex. PW1/B and Ex. PW1/C FIR No. 378/16 State V/s. Mohd. Rizwan and Anr. 3 of 17 C. Case property Ex. P1(collectively).
He is the complainant as well as injured in this case. He deposed that 19.08.2016 when he reached Sarai Kale Khan bus stand at about 6:30 pm he was going to attend nature's call, 4 persons reached there and they started beating him. As per him, one of them hit him with a brick on his head due to which he sustained injuries and one of the said persons snatched his pink colour pithu bag containing his belongings and documents. Thereafter he shouted and ran towards police vehicle which was standing near Sarai Kale Khan under flyover. Thereafter he alongwith the police chased the accused persons and the said police official apprehended one of the accused namely Mohd. Rizwan.
It may be noted that this witness correctly identified both the accused herein as the perpetrators of the crime.
ii PW2 ASI The said witness was on PCR duty and had Suresh helped the complainant in apprehending the Chand accused Mohd. Rizwan. He also called police at 100 number and handed over the accused Rizwan to the IO. He later took the victim to AIIMS hospital.
It may be noted that this witness correctly identified the accused Rizwan herein as the person apprehended by him at the instance of the victim.
FIR No. 378/16 State V/s. Mohd. Rizwan and Anr. 4 of 17
iii PW3 SI Documents produced/proved:
Ram
Kishore A. True copy of DD No. 32PP Ex. PW3/A
B. Rukka Ex. PW3/B
C. Disclosure statement of accused Rizwan Ex.
PW3/C D. Disclosure statement of accused Imtiyaz Ali @ Dukhiya Ex. PW3/D E. Seizure memo of case property i.e. pink colour bag containing 3 pairs of cloths Ex. PW3/E F. Arrest and personal search memo of accused Imtiyaz Ali @ Dukhiya Ex. PW3/F and Ex.
PW3/G He is the IO of the case who carried out the investigation in the case.
Documents admitted by the accused:
A. Copy of FIR (without contents) Ex. PA1 B. MLC No. 578800/16 of injured Jaidev Ex. PA 2
6. All the said witnesses were duly examined on behalf of the State and crossexamined [by the Ld. APP for State, where necessary and also by the counsel for the accused person(s)].
7. After closure of prosecution evidence, statement of both accused were recorded u/s. 313 Cr.P.C in which they stated that they have been falsely implicated in the present case. They availed the opportunity to lead defence evidence. The accused persons examined three witnesses in their defence whose details are as follows :
FIR No. 378/16 State V/s. Mohd. Rizwan and Anr. 5 of 17 Sr. Witness Description Nature of deposition/documents No. produced/proved i DW1 Ms. Safia The said witness is the mother of the accused Imtiyaz Ali @ Dukhiya and deposed that the police officials taken to the accused Imtiyaz Ali @ Dukhiya from their house and thereafter she came to know that the police had lodged a case against him.
ii DW2 Mohd. Nasir The said witness is the father of the accused Imtiyaz Ali @ Dukhiya and claimed that his son was picked up from his house on 19th of a month in 2016.
iii DW3 Mohd. Guddu The said witness claimed that accused Mohd. Rizwan was picked up from his house by police while he was sleeping in his room.
8. Thereafter both the accused closed their defence evidence and hence matter reached the stage of final arguments.
9. Final arguments heard. Record perused.
10. The learned counsel for the State argued that the case of the State is dependent on the testimonies of victim Jai dev and the PCR official ASI Suresh Chand and both the said witnesses have fully corroborated their testimonies and the said testimonies (of each of the said witnesses) are in line with the case set up by the prosecution before this court. Thus, the learned counsel for the State argued that this is a FIR No. 378/16 State V/s. Mohd. Rizwan and Anr. 6 of 17 fit case for conviction of each of the accused for the offences alleged against them.
11.On the other hand respective counsels for each of the accused argued that this is a fit case for the acquittal of their clients. It is the argument of the respective counsels for the accused that each of the accused have been falsely implicated in this case because each of the accused were picked up from their house and falsely implicated in this case.
12. It was also argued that the testimony of PW1 is not reliable because while in his complaint he claimed that he was robbed by three persons, he claimed before this court that atleast 04 persons robbed him. Again, it is argued that the case property in question has been planted on accused Imtiyaz Ali @ Dukhiya and therefore both the accused should be acquitted in this case.
13. I have given thoughtful consideration to the arguments made before me and have gone through the entire record.
14. As per the evidence led before this court, there are two main witnesses of the incident. One is the victim namely Jai Dev who stepped in the witness box as PW1 and another is a police official / PCR incharge ASI Suresh Chand (who happened to be at duty on the PCR van KITE 72 near the spot of incident) and he stepped in the witness box as PW2. This witness Jai Dev claimed that on 19.08.2016 FIR No. 378/16 State V/s. Mohd. Rizwan and Anr. 7 of 17 at about 06:00 PM while he was going for answering nature's call, his bag was robbed from him which contained his clothes [Ex.P1 (colly.)] and he was carrying his Election ID Card. He claimed that the accused Rizwan was present alongwith other boys who surrounded him and hit him on his head with a brick before robbing his bag. He further deposed that after the said incident, the accused Rizwan alongwith other boys left him in the injured condition. He called out for help and approached a PCR van wherein PW2 ASI Suresh Chand (incharge of PCR Van KITE 72) helped the victim by trying to look for the accused. Soon thereafter, accused Rizwan was arrested at the instance of victim Jai Dev when the persons involved in the incident were stepping out from the forest area near the place of incident.
15. PW2 / ASI Suresh Chand, who is the other witness of the case, has also deposed on the same lines as PW1 / Jai Dev. He categorically identified the accused Rizwan as the person who was apprehended at the instance of Jai Dev soon after the incident. He also deposed that he had found Jai Dev in an injured condition with blood oozing out from his head and he seeking his help. He claimed to have apprehended accused Rizwan thereafter. He also claimed that he was incharge of PCR van KITE 72 near Sarai Kale Khan when the victim Jai Dev had approached him for help.
16. Now as per the testimony of both the said witnesses namely Jai Dev / PW1 and ASI Suresh Chand / PW2, the incident took place near Sarai FIR No. 378/16 State V/s. Mohd. Rizwan and Anr. 8 of 17 Kale Khan bus stand and ASI Suresh Chand was posted at the said location with his PCR KITE 72. Again, from the reading of the testimony of the said witnesses it transpires that after the incident of robbery, the accused Rizwan was apprehended soon after the incident by the said witnesses. The date, time and place of the incident, as narrated by both the witnesses, and the chain of events as disclosed by both these witnesses match on all material particulars and in the cross examination of either one of them nothing has come on record to disbelieve the testimony of the said two witnesses. The testimony of each of the said witnesses is credible and trustworthy. On account of the collaboration of the testimony of each of the said witnesses, their testimonies inspire the confidence of this court and is completely believable. Nothing has been brought to my notice by the respective counsel for the accused to give me a reason to disbelieve the said testimonies of each of the said witnesses.
17. In fact, on all material particulars, including the date, time, place or the chain of events as can be understood from the facts written in the first information report and as disclosed by either of the two witnesses, the testimony of either of the two witnesses clinically match. Again, the facts recorded in the complaint Ex.PW1/A also match with the testimony of PW1 / Jai Dev.
18. Now, it may be noted that PC remand of accused Rizwan was taken from this court after his arrest on 19.08.2016 vide order dated FIR No. 378/16 State V/s. Mohd. Rizwan and Anr. 9 of 17 20.08.2016. Thereafter, it appears that at the instance of accused Rizwan, accused Imtiyaz Ali @ Dukhiya was arrested. The name of Dukhiya appears in the complaint Ex.PW1/A wherein the complainant has specifically stated that one of the accused had asked his co - accused Dukhiya to snatch the bag from the victim and another co - accused Chand (who was never arrested) was asked to hit the accused with a brick. Later, at the instance of accused Rizwan, accused Imtiyaz Ali @ Dukhiya was arrested and on the disclosure of accused Imtiyaz Ali @ Dukhiya Ex.PW3/D the bag alongwith clothes and Election ID card (Ex.P1) belonging to the victim were recovered vide recovery memo Ex.PW3/E.
19. The said case property in part i.e. the bag, two jeans of blue and black colour, 01 full sleeve T shirt of black colour and election I card belonging to the complainant were duly identified by the complainant during his evidence as PW1. It may be noted that one pant, one shirt and one t shirt which were also shown to the witness as his property were not identified by him. Thus, atleast in part, the property recovered vide Ex.PW3/E was identified by the witness PW1. Now, this property was recovered on the basis of the disclosure statement Ex.PW3/C of Rizwan (who led the police to accused Imtiyaz Ali @ Dukhiya) during his PC remand. This led the police to interrogate accused Imtiyaz Ali @ Dukhiya who thereafter led the police to the case property Ex.P1 which was seized vide Ex.PW3/E. FIR No. 378/16 State V/s. Mohd. Rizwan and Anr. 10 of 17
20. It is settled law that disclosure statements made to police which leads to discovery of a fact are admissible in evidence in view of section 27 of Indian Evidence Act. Since, the case property in question Ex.P1 (colly.) was recovered on the basis of the disclosure Ex.PW3/D of accused Imtiyaz Ali @ Dukhiya, his disclosure qua the recovery of the said property, in my opinion, shall be admissible in evidence. Even otherwise, the recovery memo prepared at the instance of the accused Imtiyaz Ali @ Dukhiya Ex.PW3/E is also admissible in evidence as per which accused Imtiyaz Ali @ Dukhiya caused recovery of Ex.P1 (colly.) from his house. It may be noted that the recovery memo of the same Ex.PW1/E is duly witnessed by complainant Jai Dev also.
21.Now with the testimony of PW1 and PW2 inspiring confidence of this court and being trustworthy in nature, in my opinion, prosecution has been able to show that the accused herein had together robbed the property of the complainant from him. With both the accused being positively identified by the complainant and they acting together alongwith other accused (not arrested), it is evident that both the accused herein were acting as a group and shared the common intention to commit the act of removing the bag in possession of the complainant without his consent. It may be noted herein that both the accused had suddenly surrounded the complainant and had robbed him of his property when he was answering nature's call. One of the accused purportedly held him while the other hit him with a brick and FIR No. 378/16 State V/s. Mohd. Rizwan and Anr. 11 of 17 the third removed his bag. The aforesaid facts clearly show that both of the accused herein (who could be arrested) were acting in tandem alongwith others, as a team, to complete the act i.e of robbing of bag with clothes and Election ID Card in question from the complainant / victim. This also show that they both were acting and operating in furtherance of their common intention to rob the property of the complainant.
22. I have already noted that from the cross examination of either of the aforesaid two witnesses nothing has come on record to either shake the veracity of the facts disclosed by them or to disbelieve their testimony. It may be reiterated, even at the cost of repetition that the date, time and place of the incident, as narrated by both the witnesses, and the chain of events as disclosed by both these eyewitnesses match on all material particulars. The testimony of each of the said witnesses is credible and trustworthy. On account of the collaboration of the testimony of each of the said witnesses, their testimonies inspire the confidence of this court and is completely believable. Nothing has been brought to my notice by the respective counsel for the accused to give me a reason to disbelieve the said testimonies of each of the said witnesses.
23. Again, there is no credible explanation or any motive is attributed to either of the said two witnesses by either of the accused herein to show any reason for falsely implicating the accused herein. At this FIR No. 378/16 State V/s. Mohd. Rizwan and Anr. 12 of 17 stage, I may note that accused produced 03 witnesses to claim that they were picked up from their houses by the police and falsely implicated.
24. I am not inclined to accept the said argument raised on behalf of the accused persons. Firstly, all the three witnesses are closely related with each of the accused herein. While DW1 is mother of Accused Imtiyaz Ali @ Dukhiya, DW2 is the father of accused Rizwan. They both are thus interested witnesses. Even otherwise, they did not make any complaint regarding the alleged picking up of the accused persons by the police and thus, it shows that the factum of picking is an after thought primarily made to put up a defence for the accused. Secondly, the other witness DW3 appears to be a friend of accused Rizwan and live in the same house where accused Rizwan resides. Thus this witness is also an interested witness whose testimony is of not much relevance and cannot be believed.
25. Further still, how would then the injuries suffered by the complainant be explained? It is to be noted that each of the two witnesses namely Jai Dev and ASI Suresh Chand have categorically stated that after the incident, the complainant was seen with injury on his head with blood oozing out. As per the complainant, one of the accused herein had hit him on his head with a brick which led to injury. This injury on the body of the victim matches with his claim made in his testimony and with the injury described in his MLC Ex.PA2. The said MLC has FIR No. 378/16 State V/s. Mohd. Rizwan and Anr. 13 of 17 been admitted by the accused persons and the chain of events as described by the victim Jai Dev is corroborated by the testimony of the other witness ASI Suresh Chand and is further corroborated by the aforesaid medicolegal report of the said victim.
26.At this stage, it may be noted that before to the incident, neither the complainant nor the other witness ASI Suresh Chand knew either of the accused herein. Thus, the theory of false implication raised before this court is neither credible nor believable. There is nothing on record to show that the complainant knew the accused herein (prior to the incident) or had any other motive to falsely implicate them. Similar is the case with the other witness namely ASI Suresh Chand. That being the case, in my opinion, the evidence brought on record by the prosecution is sufficient to bring home the guilt of both the accused under section 392/34 IPC.
27. Now, as already noted, in the incident Jai Dev had sustained injuries on his head, which was a direct result of the robbery committed by the accused herein, in furtherance of their common intention. As already noted, Jai Dev categorically stated that during the incident, he was hit by brick which led to injury on his body and which has been proved on record through his MLC Ex. PA2. Thus, the chain of events as described by the victim Jai Dev is corroborated by the aforesaid medicolegal report of the said victim and shows that in committing of FIR No. 378/16 State V/s. Mohd. Rizwan and Anr. 14 of 17 the robbery in this case, the accused herein had voluntarily caused injury to the victim Jai Dev.
28. All the said acts, as already noted, were done in tandem by each of the accused acting in a ground in furtherance of a common goal and thus they both had the necessary common intention to commit the act of robbery as well the voluntariness in causing injury to the victim Jai Dev. Thus, the present case shall come out of the ambit of section 392/34 IPC and shall fall in the ambit of the graver offence as defined under section 394/34 IPC.
29. In my opinion, the accused here in committed robbery of a bag with clothes and ID Card and in the process also voluntarily caused simple injury (by hitting with a brick). Thus, both the accused herein are guilty of offences made punishable u/s. 394/34 IPC.
30. As far as the argument raised by the counsel for the accused persons that testimony of PW1 is not credible because while deposing as PW1, the said witness claimed that 04 boys had actually beaten him which is in contradiction to his claim in the complaint wherein he claims that only 3 boys had beaten / robbed him, in my opinion, the same cannot be the ground for acquitting the accused herein. Suffice is to say that with the positive identification of the each of the accused herein by the two witnesses and considering the credible evidence of each one of them, nothing much turns on the said contradiction. At best, there is FIR No. 378/16 State V/s. Mohd. Rizwan and Anr. 15 of 17 some lapse of memory on the part of the said witness when he deposed before this court as a witness. This is considering the credible testimony of two witnesses whose evidence has been found to be of sterling quality. Suffice is to say that once the testimony of the two witnesses has been found to be credible and trustworthy, which inspires the confidence of the court, the aforesaid contradiction/omission, in my opinion, is of no consequence.
31. This is because the material facts of the case relate to the act of removing of goods i.e bag with clothes and ID Card from the body of the complainant without his consent, by the accused persons herein, with both acting in furtherance of a common intention. The other material fact is voluntary causing of injury by the said accused persons on the body of the victim while committing the act of removal of goods. Once the said facts are duly proved on record, only because the complainant had claimed initially that 03 people were involved and subsequently that 04 persons were involved, the same cannot be a ground of acquitting the accused persons by overlooking the other facts of the case which have been duly proved by prosecution through the testimonies of two witnesses.
32. Thus, in my opinion, considering the aforesaid facts and circumstances of the present case, both the accused Mohd. Rizwan and accused Imtiyaz Ali @ Dukhiya are guilty of offences made punishable under section 394/34 IPC. It is ordered accordingly.
FIR No. 378/16 State V/s. Mohd. Rizwan and Anr. 16 of 17
33. Again, with the recovery of Ex.P1 (colly.) i.e. the case property in question being made from the accused Imtiyaz Ali @ Dukhiya at his instance, there is no iota of doubt that he being involved in the act of robbing the property, he was aware that the said property is stolen property. He retained the same despite knowing this fact. The said property was subsequently recovered at his instance vide seizure memo Ex.PW3/E which was duly witnessed inter alia by complainant Jai Dev also. Thus, prosecution has been able to show that accused Imtiyaz @ Dukhiya had received / retained stolen property knowing fully well that the same is stolen property. Thus, all ingredients of section 411 IPC are also complete qua accused Imtiyaz Ali @ Dukhiya. Accordingly, he is convicted for offence made punishable u/s. 411 IPC also. Digitally signed by AASHISH AASHISH GUPTA GUPTA Date:
2019.01.08 Announced in the Open 14:21:41 +0530 Aashish Gupta Court on 08th day of January, 2019 MM(South East)07 Saket, New Delhi.
FIR No. 378/16 State V/s. Mohd. Rizwan and Anr. 17 of 17