Delhi District Court
State vs . Javed Ahmed & Anr. on 16 September, 2022
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL
SESSIONS JUDGE-02 (NE), KARKARDOOMA COURTS, DELHI.
CNR No. DLNE01-001766-2018
SC No. 147/2018
State Vs. Javed Ahmed & Anr.
FIR No. 70/2018
PS : Gokal Puri
State
Versus
1. Javed Ahmed
S/o Sh. Nabi Ahmed
R/o Shop No. 199, Okhla Mandir,
Near Railway Station, Shriniwas Pur,
South Extension, New Delhi
2. Mohd. Jakir
S/o Sh. Mahmood
R/o H No. 853/26, Gali No. 9,
Old Mustafabad, Delhi.
Date of Institution / Committal : 28.04.2018
Date of Arguments : 16.09.2022
Date of Pronouncement : 16.09.2022
FIR No. 70/2018 State Vs. Javed Ahmed & Anr, 1/15
JUDGMENT:
1. Prosecution case: It is case of the prosecution that on 10.02.2018, a DD No. 74B was received by PS regarding a robbery, which was assigned to SI Subhash Kumar, who alongwith Ct. Nitin reached the spot of incident at Bhagrathi Vihar, Nala Road, Delhi, where complainant Pardeep Kumar met him and disclosed that he was running a business of POP in the name and title of M/s. Harsh Trading Company, Govind Vihar, Karawal Nagar, Delhi. He further alleged that on 10.2.18, he left his office with a blue colour bag containing cash of Rs. 6,70,000/-, bank passbook, cheque book, PAN card, Aadhar card etc. by his Scooty and at about 7.45 pm, he reached near Bhagrathi Vihar, Nala Road near wielding Building, when a black colour spender motorcycle bearing No. DL-5SBZ-3178 boarded by four boys obstructed his way. He has further alleged that one of the abovesaid assailants hit iron rod on his head and neck, whereas other one pointed out a knife, but he did not sustain any injury being wearing a helmet. He tried to flee but all of them caught him and boy having knife snatched his bag containing cash and other documents and fled away. He could not identify the assailants. On the basis of this statement, FIR was registered. During investigation, two assailants were apprehended on secret information and a cash amount of Rs. 50,000/- was recovered from accused Javed Ahmad and cash of Rs. 25,000/- from accused Md. Jakir besides recovery of a motorcycle bearing no DL- 5SBZ-3178 which was used during incident. Police arrested and charge-
sheeted both accused u/s 392/397/411/ 34 IPC FIR No. 70/2018 State Vs. Javed Ahmed & Anr, 2/15
2. This charge-sheet committed to this court after compliance of Section 207 Cr.P.C.
3. Charges u/s 392/397/411/34 IPC were framed against both accused vide order dated 19.07.2018 and they pleaded not guilty and claimed trial.
4. To prove the charges, prosecution has examined PW1 ASI Roshan Lal, PW2 Pradeep Kumar, PW3 Ct. Nitin, PW4 HC Sanjeev, PW5 Ct. Rajesh Kumar, PW6 SI Subhash, PW7 Ms. Bhawani Sharma, Ld ACMM. No other PW has been examined by prosecution and closed PE.
5. After PE, entire incriminating evidence was explained to both accused under Section 313 CrPC and their statements were recorded. Accused failed to lead DE despite availing opportunity and their DE was closed by this court vide order dated 24/08/2022.
6. To prove the case, prosecution has examined many witnesses and evidence led by prosecution is as under: -
6.1. PW1 ASI Roshan Lal has proved that on 10.02.2018, he received a rukka Ex.PW1/A sent by SI Subhash Kumar through Ct. Nitin. He made his endorsement on rukka Ex.PW/B and recorded FIR which is Ex.PW1/C. He also issued certificate u/s 65B of Evidence Act regarding FIR which is Ex.PW1/D. 6.2. PW2 Pradeep Kumar is the complainant and has deposed that 10.02.2018 at about 8.00 pm, he left his office at Karawal Nagar with a bag containing cash of Rs. 6.70 lacs, bank passbook, cheque book, PAN Card, FIR No. 70/2018 State Vs. Javed Ahmed & Anr, 3/15 Aadhar card and some documents by his Scooty to go to his home. He reached the spot near Bhagrathi Vihar, Gokul Puri, Nala road, when one spender bike came from back side and four persons on bike got stopped his Scooty. Three boys came down and one of them was having knife and other one had steel rod, whereas third assailants was empty hand but fourth remained sitting on bike. It is further deposed that one assailant hit iron rod on his helmet and back, whereas one pointed out knife and third one who wa s wearing helmet robbed his bag containing cash and other documents and fled away. He could not see the robbers. Police recorded his statement Ex.PW1/A, but he failed to identify both accused to be robbers. He also could not identify accused Mohd. Jakir during TIP proceedings. It is further deposed that on 11.12.2018 and 12.03.2018, SI Subhash informed him about recovery of Rs. 50,000/- and 25,000/- from two robbers respectively, but he could not see registration number of two-wheeler used during this crime. He has identified cash amount of Rs. 50,000/- and Rs. 25,000/- but remaining cash could not be recovered. He has identified the recovered cash amount of Rs. 75,000/- as Ex. P1 and Ex. P2 (colly) respectively. Ld. Addl. PP for State has cross examined him but he has not cooperated with prosecution.
6.3. PW3 Ct. Nitin also joined investigation with SI Subhash and witnessed the arrest of accused Javed Ahmad vide arrest memo Ex. PW3/A and personal search memo Ex.PW3/B. IO also conducted personal search of accused Javed in his presence and also recovered Rs. 50,000/- from his pocket, which were seized vide seizure memo Ex.PW3/C. Motorcycle used during the crime was also seized in his presence vide seizure memo Ex.PW3/1. Site plan of the spot of incident is Mark PW3/2. He has failed to FIR No. 70/2018 State Vs. Javed Ahmed & Anr, 4/15 identify the currency notes.
6.3.1. During cross examination by Ld. Addl. PP for State, he has admitted that DD No. 74B which is Mark PW3/3 was assigned to SI Subhash and he joined investigation with him. It is further admitted that complainant Pardeep Kumar met at the spot where IO recorded his statement which is Ex.PW1/B. IO also prepared site plan of the spot. Motorcycle bearing No. DL-5S-BZ-
3178 used during the crime was also seized in his presence, but he could not admit/ deny that the currency notes were recovered from accused Javed Ahmad. He has identified currency notes as Ex. P2 (colly).
6.3.2. During cross examination by accused, he has admitted that there were only two persons including him when accused was arrested. He could not identify the number and year of currency notes recovered from accused Javed and even no finger prints were lifted from those currency notes. It is further admitted that currency notes were counted and seized in PS. He has denied that the complainant never stated in his statement that Rs. 6 Lacs were robbed. He was not aware about recording of disclosure statement of accused Javed Ahmad and it is denied that Javed did not rob Rs. 50,000/- or that amount has been planted upon him.
6.4. PW4 HC Sanjeev has proved the entries of Register no. 19, as per which, on 11.02.2018, sealed parcels of currency notes and motorcycle were deposited vide Entry Ex. PW4/A. On 12.03.2018, SI Subhash again deposited currency notes of Rs. 25,000/- vide Entry Ex.PW4/B. FIR No. 70/2018 State Vs. Javed Ahmed & Anr, 5/15 6.5. PW5 Ct. Rajesh Kumar also joined the investigation of this case and witnessed the arrest of accused Mohd. Jakir vide arrest documents Ex.PW5/A and Ex.PW5/B. Accused also made his disclosure statement. On 17.03.2018, accused led to his house and pointed out one Almira from which cash of Rs. 25,000/- was seized vide seizure memo Ex.PW5/B. IO made efforts to arrest third accused but could not arrest him.
6.5.1. During cross examination, he has deposed that he did not remember the extent of construction of the house of accused Mohd. Jakir, but Almira by which recovery was made was made of iron and was kept in the left side of room situated at ground floor. Accused Mohd. Jakir took out amount of Rs. 25,000/- from Almira, but no one witnessed this recovery. He was not aware about serial numbers of currency notes recovered from the accused.
6.6. PW6 SI Subhash was IO and was assigned investigation of DD No. 74B. He visited the spot of incident and recorded the statement of complainant which is Ex.PW1/A, on which basis, he prepared rukka Ex.PW6/A and got registered FIR from PS through Ct. Nitin. He prepared rough site plan of the spot which is Ex.PW3/B. He tried to search other accused but could not succeed. On 11.02.2018, he arrested accused Javed Ahmad on secret information and during his personal search, Rs. 50,000/- were recovered from his possession which were seized in the presence of PW3. He recorded the disclosure statement of accused Javed Ahmad which is Ex.PW6/B and also got him medically examined. He obtained the ownership document of the motorcycle No. DL-5S-BZ-3178, which was found in the name of Mehmood, who disclosure that his son Jakir Ahmad was using that FIR No. 70/2018 State Vs. Javed Ahmed & Anr, 6/15 motorcycle. Motorcycle was seized vide seizure memo which is Ex.PW3/1. Accused Javed was kept in muffled face and his TIP was got conducted, but accused refused to undergo for TIP proceedings. On 16.03.2018, he along- with Ct. Rajesh apprehended accused Jakir Ahmad from his house and arrested him vide memos Ex.PW5/A and Ex. PW5/B. He also recorded his disclosure statement Ex.PW6/C. Accused Mohd. Jakir got recovered Rs. 25,000/- from Almira of his house, which were seized vide seizure memo Ex.PW5/C. He tried to apprehend third accused but could not succeed. He kept accused Mohd. Jakir in muffled face and got conducted his TIP vide TIP proceedings Ex. PW7/A to Ex. PW7/C, but complainant could not identify him. He has identified amount of Rs. 25,000/- and Rs. 50,000/- respectively as Ex. P1 and Ex. P2 (colly).
6.6.1. During cross examination, he has admitted that complainant did not sustain any injury during this incident being worn helmet. Ct. Nitin left the spot with rukka after amount 2-2 ½ hours of their reaching at the spot. He did not remember as to whether complainant signed the site plan prepared by him, but it is denied that site plan was prepared by him while sitting in PS. It is further admitted that no medical examination of the complainant got conducted. It is further admitted that the description of currency notes was not disclosed by the complainant and even physical descriptions of accused persons were also not disclosed but merely their age was disclosed. It is further admitted that he checked CCTV footages, but no CCTV footage was recovered as CCTV camera was not found nearby to the spot and nearest CCTV camera was found installed about 4-5 kilometers away from the spot. It is further admitted that recovery of Rs. 50,000/- was not effected from FIR No. 70/2018 State Vs. Javed Ahmed & Anr, 7/15 accused Javed Ahmad in the presence of the complainant. He did not remember whether public persons were present there when he arrested accused Javed Ahmad, however no family member of accused was present at that time. The house of accused was measuring about 25-30 square yards and was constructed upto 2 -3 floors, but it was lying opened when they reached there. It is further admitted that he did not prepare the site plan of the house of accused wherefrom recovery was made and even no notice was served upon neighbours to join investigation. He did not lodge any DD entry regarding his visit to the house of accused. It is further admitted that he did not ask any public person to join investigation and even no site plan of the place of arrest of accused was prepared. It is denied that the accused have been falsely implicated to this case.
6.7. PW7 Ms. Bhawani Sharma, the then Ld. ACMM has proved TIP proceedings of accused Mohd. Jakir conducted on 21.03.2018 vide Ex. PW7/A to Ex. PW7/C witness Pardeep Kumar could not identify the accused during TIP proceedings.
7. I have heard the arguments and perused the record. Prosecution has alleged that on 10.02.2018, at about 7.45 pm, at Nala Road, Bhagwathi Vihar, both the accused Mohd. Jakir and Javed Ahmad along-with their two other associates committed the robbery of Rs. 6.7 Lacs and other articles from the possession of complainant Pardeep Kumar on the strength of iron rod and knife. To prove these allegations u/s 392/397/34 IPC, prosecution has examined PW2 / complainant Pardeep Kumar who has categorically proved that on 10.02.2018, at about 8.00 pm, he left his work place with a bag FIR No. 70/2018 State Vs. Javed Ahmed & Anr, 8/15 containing Rs. 6.7 lacs cash, bank passbook, cheque book, PAN card, Aadhar card and other documents by his Scooty and reached near Bhagrathi Vihar, Gokal Puri, when four unknown persons on a bike got him forcibly stopped and robbed his bag containing abovesaid articles. He has proved that one of the assailants also hit iron rod on his helmet and back, whereas other assailant pointed out knife towards him and third one who was wearing helmet robed his bag containing cash and documents. However, PW2 has failed to identify the robbers who committed this robbery. Initially, PW2 made his statement Ex.PW1/A duly recorded by PW6 thereby stating to identify the assailants, if shown to him, but he has failed to identity both accused Md. Jakir and Javed Ahmad before the court during his evidence. Not only during evidence, PW2 has also failed to identify accused Mohd. Jakir during TIP proceedings conducted by PW7, the then Ld. ACMM vide TIP proceedings Ex. PW7/A to Ex. PW7/C. Though accused Mohd. Jakir refused for his TIP, yet PW2 has also failed to identify him before this court as well. As such, identity of both accused could not be proved by the complainant/PW2.
8. Ld. Addl. PP for State has argued that accused Javed Ahmad failed to participate during TIP proceedings which suggests that he did not dispute his identity as assailant during this incident and adverse inference is bound to be drawn against him. On the other hand, Ld. Counsel for accused has argued that refusal of participation in TIP proceedings for a valid reason is justified as accused was already shown to the victim by IO in custody, due to no adverse inference can be drawn against the accused.
9. Admittedly, identity of accused during criminal trial is material fact and no accused can be convicted in any case of disputed identity. The law FIR No. 70/2018 State Vs. Javed Ahmed & Anr, 9/15 related to adverse inference on refusal of TIP has been summarized in case titled Rajesh v. State of Haryana, (2021) 1 SCC 118 as under:
43. The prosecution has submitted that an adverse inference should be drawn against the appellants for refusing to submit themselves to a TIP. Before we deal with the circumstances in which the appellants declined a TIP, it becomes essential to scrutinise the precedent from this Court bearing on the subject. A line of precedent of this Court has dwelt on the purpose of conducting a TIP, the source of the authority of the investigator to do so, the manner in which these proceedings should be conducted, the weight to be ascribed to identification in the course of a TIP and the circumstances in which an adverse inference can be drawn against the accused who refuses to undergo the process. The principles which have emerged from the precedents of this Court can be summarized as follows:
43.1. The purpose of conducting a TIP is that persons who claim to have seen the offender at the time of the occurrence identify them from amongst the other individuals without tutoring or aid from any source. An identification parade, in other words, tests the memory of the witnesses, in order for the prosecution to determine whether any or all of them can be cited as eyewitness to the crime.
43.2. There is no specific provision either in CrPC or the Evidence Act, 1872 ("the Evidence Act") which lends statutory authority to an identification parade. Identification parades belong to the stage of the investigation of crime and there is no provision which compels the investigating agency to hold or confers a right on the accused to claim a TIP.
43.3. Identification parades are governed in that context by the provision of Section 162 CrPC.
43.4. A TIP should ordinarily be conducted soon after the arrest of the accused, so as to preclude a possibility of the accused being shown to the witnesses before it is held.
43.5. The identification of the accused in court constitutes substantive evidence.
43.6. Facts which establish the identity of the accused person are treated to be relevant under Section 9 of the Evidence Act.
FIR No. 70/2018 State Vs. Javed Ahmed & Anr, 10/15 43.7. A TIP may lend corroboration to the identification of the witness in court, if so required.
43.8. As a rule of prudence, the court would, generally speaking, look for corroboration of the witness' identification of the accused in court, in the form of earlier identification proceedings. The rule of prudence is subject to the exception when the court considers it safe to rely upon the evidence of a particular witness without such, or other corroboration.
43.9. Since a TIP does not constitute substantive evidence, the failure to hold it does not ipso facto make the evidence of identification inadmissible.
43.10. The weight that is attached to such identification is a matter to be determined by the court in the circumstances of that particular case.
43.11. Identification of the accused in a TIP or in court is not essential in every case where guilt is established on the basis of circumstances which lend assurance to the nature and the quality of the evidence.
43.12. The court of fact may, in the context and circumstances of each case, determine whether an adverse inference should be drawn against the accused for refusing to participate in a TIP.
However, the court would look for corroborating material of a substantial nature before it enters a finding in regard to the guilt of the accused.
In view of the abovesaid law, it stands proved that TIP is not a substantive piece of evidence and may be used just to corroborate the evidence against accused. The identification of accused in court constitutes substantive evidence and TIP just may lend corroboration to the identification of the witness in court, if so required. However, in this case court identification of both accused could not be established.
10. Admittedly, identity also may be proved by the circumstances leading to the involvement of the accused. To ascertain the identity of both accused, it FIR No. 70/2018 State Vs. Javed Ahmed & Anr, 11/15 is necessary to go through the evidence on record. This incident was reported by DD No. 74B (Mark PW3/3) which was pertaining to a robbery by four unknown persons on unknown bike. Complainant / PW2 stated in his statement Ex.PW1/A that he could identify the assailants, if shown, but both the accused were arrested on a secret information vide arrest memos Ex.PW3/A and Ex.PW5/A, but by that time the identity of both accused as assailants was not clear. IO has admitted that the complainant did not disclose the physical descriptions of the assailants and only age was disclosed which suggests that identity of both accused was not ascertained by the time when they were arrested. It is beyond explanation as to how IO ascertained their identity before arrest them. PW2 was given opportunity to identity accused Mohd. Jakir by getting conducted his TIP through PW7, but he failed to identity accused during TIP proceedings Ex.PW7/A to Ex.PW7/C. As such, PW2 was not aware about the identity of both accused till their TIP. Both the accused were arrested by PW6 in the presence of PW3 Ct. Nitin on a secret information, but no one identified them to be assailants due to testimonies of PW3 and PW6 are not sufficient to prove their identity as assailants. As such, identity of both accused could not be established and it could not be proved that both the accused along with their other associates committed this robbery of cash and articles of complainant on the strength of dangerous weapons and charges u/s 392/397/34 IPC could not be proved against them.
11. Next charge against both accused is pertaining to section 411 IPC. Prosecution has alleged that Rs.50,000/-, out of robbed amount, were recovered from accused Javed Ahmed, whereas Rs. 25,000/- were recovered from the house of accused Mohd. Jakir. Recovery from accused Javed FIR No. 70/2018 State Vs. Javed Ahmed & Anr, 12/15 Ahmad was made against seizure memo Ex.PW3/C and recovery from accused Mohd. Jakir was made vide seizure memo Ex.PW5/C. Before this recovery, accused Javed Ahmad and Md. Jakir made their disclosure statements Ex.PW6/B and Ex.PW6/C in which they confessed that recovered amount was part of stolen property, but it is beyond explanation as to how this recovery from both accused was connected to them. PW2 Pardeep Kumar has categorically admitted that he could not see robbers and was also not in position to identify them. He also could not see registration number of two-wheeler of assailants. He was informed by PW6 SI Subhash about this recovery from both robbers on 11.12.2018 and 12.03.2018 respectively and PW6 has also admitted during his cross examination that this recovery was not effected in the presence of complainant. PW5 Ct. Rajesh Kumar witnessed this recovery, but he also could not tell the serial numbers or distinguished marks on the recovered currency notes to connect them to robbed currency. Contrary to it, PW2 was not aware about the complete description of currency notes recovered from the robbers to prove that these notes were part of robbed cash. On the other hand, PW3 Ct. Nitin has failed to prove the denomination of currency notes recovered from the possession of accused or at their instance. Even he also failed to identity the number of currency notes which were recovered from the accused. No finger prints were lifted from currency notes by IO. Though PW2 has identified these currency notes before this court during PE, yet it could not be proved on what basis he identified these currency notes. As such, it could not be proved that the recovered currency notes Ex. P1 and Ex. P2 (colly) belonged to the complainant.
FIR No. 70/2018 State Vs. Javed Ahmed & Anr, 13/15
12. In fact, after going through the testimonies of recovery witnesses, especially PW3 Ct. Nitin and PW6 SI Subhash, it stands proved that recovery of cash amount made from the accused or at their instance could not be established or proved to be the stolen property. Currency notes are usually and easily available and without any distinct mark, it is very difficult to distinguish them. PW2 did not provide any number or distinct identification to currency notes robbed by the robbers and it could not be proved that both the accused in furtherance of their common intention with other associates committed the robbery of cash and other articles of PW2.
13. Section 411 IPC necessitates that accused must dishonestly receive or retain the stolen property despite knowing or having reason to believe that the same was stolen, only then he may be convicted for this offence. The criteria of stolen property provided by section 410 IPC must be satisfied and recovered property must be transferred to him via theft/ extortion/ robbery/ or criminally misappropriation. However, in this case, there is no evidence on record to prove that both accused retained or received this cash amount despite knowing to be stolen. PW2 has denied that both the accused were robbers of this cash and there is no evidence on record to prove that both the accused received this stolen property or retained it deliberately. As such, this offence also could not be proved in any manner.
14. Ld. Addl. PP for State has argued that bike used during the incident bearing No. DL-5S-BZ-3178 belonged to the father of accused Mohd. Jakir, due to it has connected to this offence. However, DD No. 74B has proved that the complainant was not aware about the vehicle involved during this incident. PW2 has failed to identify both accused who allegedly committed FIR No. 70/2018 State Vs. Javed Ahmed & Anr, 14/15 this offence. He could not see two-wheeler used during this crime. In fact, PW2 was the best witness who could have proved the involvement of accused as well as vehicle during the incident, but he has failed to prove it and involvement of accused cannot be decided by because bike recovered by the police belonged to the father of accused.
15. Keeping in view the facts and circumstances of this case, I am of the considered opinion that the prosecution has failed to prove the charges against both accused and they are entitled for acquitted, hence acquitted.
16. Bail bonds of both accused already on record are hereby extended for 6 months u/s 437A Cr.PC, with direction to both accused to appear before the appellant court, in case of filing of any appeal against this judgment.
17. Case property Ex. P1 (colly) and Ex. P2 (colly) shown to be recovered from both accused stands forfeited to the State, as none of parties could prove its claim over it.
18. File be consigned to record room after due compliance. Digitally signed by DEVENDRA DEVENDRA KUMAR KUMAR Date:
2022.09.16 16:33:45 +0530 Announced in open court (Devender Kumar) today on 16.09.2022 Additional Sessions Judge-02 (NE) Karkardooma Courts, Delhi.
FIR No. 70/2018 State Vs. Javed Ahmed & Anr, 15/15