Delhi District Court
State vs . Sahid Ali on 15 May, 2014
FIR No. 439/07; U/s 395/34,397 & 174A IPC; PS Adarsh Nagar IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE-04 (NORTH): ROHINI COURTS: DELHI Session Case No. 109/1 Unique Case ID No. 02404R0204432013 State Vs. Sahid Ali S/o Sheikh Sharafat Ali R/o H. No. C-169, Jahangir Puri, Delhi FIR No. : 439/07 Police Station : Adarsh Nagar Under Sections : 395/34, 397 & 174-A IPC Date of committal to Sessions Court: 07.06.2013 Date on which judgment was reserved: 15.05.2014 Date on which Judgment pronounced: 15.05.2014 JUDGMENT
The case of the prosecution as per charge sheet is summarized as under:
(i) Intimation about dacoity committed at house no. D13, Rana Pratap Road, Adarsh Nagar was received on 03.09.07 at about 2.25 A.M in PS Adarsh Nagar. Said intimation was recorded vide DD no. 23A and was marked to SI Kishan Lal for necessary enquiry. Inspector Sanjay Drall Additional SHO PS Adarsh Nagar was also informed about the said intimation who as well as Inspector Sudesh Ranga alongwith Ct. Jai Kumar also went to the spot.
(ii) When SI Kishan Lal alongwith Ct. Ram Karan reached the spot, complainant Sh. Ravinder Garg met him and gave statement that he was residing alongwith his family at the said address. He was running garment State V/s Sahid Ali (" Acquitted U/s 395/34 & 397 IPC & Convicted U/s 174A IPC ") Page 1 of 10 FIR No. 439/07; U/s 395/34,397 & 174A IPC; PS Adarsh Nagar shop under the name and style of R.K Garments at B1038, Jahangir Puri, Delhi. He alongwith his family members were sleeping in the house. At about 1.00/1.30 A.M, he woke up on hearing some noise. 78 boys were present in his room while one another boy was standing at the main gate of the house. In the meantime, his wife Smt. Renu Garg also got up. Those boys were removing the articles from Godrej almirah lying inside the said room. One of them was having pistol like weapon, another was having iron rod and rest of others were having knives with them. All of them put him and his wife Smt. Renu Garg in fear of death and committed dacoity of valuable articles including four gold bangles, one gold set, two gold rings, one gold bracelet, etc besides decamping with cash amount of Rs. 15,000/. They bolted complainant Sh Ravinder Garg and his wife Smt. Renu Garg and other family members inside the room and fled away from the spot. Complainant Sh. Ravinder Garg managed to come out from the room and made PCR call at 100 number. While fleeing away, purse of one of those boys had fallen down which was found by complainant and his wife lying in the room. The said purse was found containing voter I Card, photographs, currency notes and few other documents.
(iii) On the basis of aforesaid statement made by complainant Sh. Ravinder Garg, SI Kishan Lal prepared rukka and got the FIR U/s 395/398 IPC registered through Ct. Ram Karan. The investigation was entrusted to Inspector Sudesh Ranga who seized the purse found at the spot.
(iv) During the course of investigation, co accused Ishtkar was State V/s Sahid Ali (" Acquitted U/s 395/34 & 397 IPC & Convicted U/s 174A IPC ") Page 2 of 10 FIR No. 439/07; U/s 395/34,397 & 174A IPC; PS Adarsh Nagar apprehended, at the instance of secret informer, from the area of Jahangir Puri. Initially, the said accused alone was charge sheeted and was put to trial. Remaining accused persons namely HasanUllah, Rehmatullaha, Ali Hasan and Sahid Ali(present accused) were declared proclaimed offender and supplementary chargesheet qua them, was also filed before the Court of concerned MM.
(v) After completion of trial, accused Ishtkar @ Intzar was convicted in respect of offences U/s 395/397 IPC vide judgment dt. 16.3.11 passed by Ld predecessor of this Court and he was sentenced to imprisonment vide order on sentence passed on 16.03.11.
On 23.4.13, ASI Raju Yadav and his other team members apprehended present accused Sahid Ali on the basis of secret information and he was arrested U/s 41.1.(c) Cr.PC vide DD no. 40A registered in PS Maurya Enclave.
On intimation being received at PS Adarsh Nagar, present accused Sahid Ali was formally arrested in this case. He refused to join judicial TIP held on 02.05.13. After completion of necessary investigation, supplementary chargesheet was filed against him before the concerned Magistrate.
After compliance of Section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame the charges u/s 395/34 IPC & U/s 397 IPC State V/s Sahid Ali (" Acquitted U/s 395/34 & 397 IPC & Convicted U/s 174A IPC ") Page 3 of 10 FIR No. 439/07; U/s 395/34,397 & 174A IPC; PS Adarsh Nagar against present accused Sahid Ali vide order dated 26.08.13 to which accused Sahid Ali pleaded not guilty and claimed trial. Thereafter, additional charge in respect of offence U/s 174A IPC was also framed against accused Sahid Ali by this Court on 15.2.14 to which also, said accused pleaded not guilty and claimed trial.
In order to prove its case against the present accused Sahid Ali, prosecution again produced PW1 Sh. Ravinder Garg(complainant) and PW2 Smt. Renu Garg during trial. The prosecution also examined three more witnesses namely PW3 HC Subhash Chand, PW4 Ct. Virender and PW5 ASI Raju Yadav towards PE.
Considering the fact that none of the star witnesses relied by the prosecution in this case, supported the prosecution story on any material point,prosecution evidence has been closed as no useful purpose would have been served in examining remaining prosecution witnesses as none of them was undisputedly present at the time of incident in question. Thus, it would have been an exercise in futility in examining those prosecution witnesses besides wastage of precious time of the Court.
Thereafter, statement U/s 313 Cr.PC of accused Sahid Ali was recorded wherein all the incriminating evidence which came on record during trial, were put to him but he denied the same. However, he did not opt to lead DE.
Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss the testimonies of prosecution State V/s Sahid Ali (" Acquitted U/s 395/34 & 397 IPC & Convicted U/s 174A IPC ") Page 4 of 10 FIR No. 439/07; U/s 395/34,397 & 174A IPC; PS Adarsh Nagar witnesses examined during trial qua present accused. The details of testimonies of aforesaid prosecution witnesses are as under: PUBLIC WITNESSES PW1 Sh. Ravinder Garg is the complainant in this case. He entered into witness box and deposed on the lines of prosecution story to the extent of factum of dacoity being committed at his house during the intervening night of 02/030907. He testified that 67 persons who were armed with pistol, knives and iron rods, had committed dacoity at the point of those weapons but he failed to identify accused Sahid Ali to be one of those assailants involved in the commission of offence. Ld Additional PP also draw attention of this witness towards accused Sahid Ali but he remained consistent in his deposition that accused Sahid Ali was not amongst one of those assailants involved in the commission of offence. He categorically denied the suggestion of Ld Additional Public Prosecutor that accused Sahid Ali was the same person who alongwith his associate namely Ishtkar(since convicted), Rehmatullaha, Hasan Ullaha and Ali Hasan(since PO) and 23 unknown associates had committed dacoity in his house. This witness has not been cross examined on behalf of accused Sahid Ali despite grant of opportunity.
PW2 Ms. Renu Garg is the wife of the complainant who had also seen the assailants at the time of committing the offence. This witness also supported the case of prosecution on all the relevant aspects except on the aspect of identity of accused Sahid Ali. She was also cross examined by Ld Additional Public Prosecutor who drew attention of this witness towards State V/s Sahid Ali (" Acquitted U/s 395/34 & 397 IPC & Convicted U/s 174A IPC ") Page 5 of 10 FIR No. 439/07; U/s 395/34,397 & 174A IPC; PS Adarsh Nagar accused Sahid Ali but she testified that accused Sahid Ali is not amongst those 67 persons who had committed dacoity in her house. This witness has also not been cross examined by present accused despite grant of opportunity.
POLICE WITNESSES PW3 HC Subhash Chand and PW4 Ct. Yogender are the police officials who were posted in Special Staff, North West District and had arrested accused Sahid Ali U/s 41.1 Cr.PC on the basis of secret information on 23.4.13. Both the said witnesses deposed about the factum regarding arrest of accused Sahid Ali by them alongwith other police staff namely HC Anil and Ct. Shree Pal and the subsequent proceedings carried out by them. They proved disclosure statement Ex PW3/A made by accused Sahid Ali wherein he confessed his involvement in the present case as well as in two other cases. They also proved arrest memo and personal search memo of accused Sahid Ali as Ex PW3/B and Ex PW3/C respectively and kalandara U/s 41.1 Cr.PC as Ex PW3/D. During cross examination of both the said witnesses, certain suggestions were put to them on behalf of accused that accused was lifted from his house and accused did not make any disclosure statement but same were denied by the witnesses.
PW5 ASI Raju Yadav has deposed about receipt of DD no. 97B in PS Adarsh Nagar on 23.4.13 regarding arrest of accused Sahid Ali by police officials of Special Staff. He proved copy of said DD no. 97B as Ex PW5/A. He also deposed about formal arrest of accused Sahid Ali on 26.4.13 after State V/s Sahid Ali (" Acquitted U/s 395/34 & 397 IPC & Convicted U/s 174A IPC ") Page 6 of 10 FIR No. 439/07; U/s 395/34,397 & 174A IPC; PS Adarsh Nagar seeking permission from the Court. He proved arrest memo and disclosure statement purportedly made by accused Sahid Ali before him as Ex PW5/B and PW5/C respectively.
During his cross examination, he denied the suggestions that accused Sahid Ali did not make any disclosure statement before him or that he had obtained signatures of said accused on some blank papers.
I have heard Sh. V.K Negi Ld Additional Public Prosecutor on behalf of State and Ld counsel Sh. Satya Parkash Advocate on behalf of accused Sahid Ali. I have also perused the material available on record.
Ld Additional Public Prosecutor for the State argued that PW1 Sh. Ravinder Garg and PW2 Smt Renu Garg fully supported the case of prosecution in their previous depositions made before the Court on 29.05.10 and on 24.07.10. He further submitted that both the said witnesses also supported the case of prosecution on all the material aspects even in their depositions recorded on 15.2.14 qua present accused Sahid Ali but they probably did not identify accused Sahid Ali due to fear of said accused. Ld APP, therefore, submitted that accused Sahid Ali should not be given any benefit for not identifying him by said two witnesses during the course of trial.
Per contra, Ld defence counsel argued that both the star witnesses relied by prosecution, have failed to identify the present accused Sahid Ali during trial and thus, he is entitled to be acquitted in this case. State V/s Sahid Ali (" Acquitted U/s 395/34 & 397 IPC & Convicted U/s 174A IPC ") Page 7 of 10 FIR No. 439/07; U/s 395/34,397 & 174A IPC; PS Adarsh Nagar There is no recovery of any weapon of offence either from the possession of present accused Sahid Ali or at his instance. There is no iota of evidence on record to show that accused Sahid Ali had used any kind of weapon at the time of commission of offence. In order to establish the charge in respect of offence U/s 397 IPC, it was essential for the prosecution to lead convincing evidence in order to show that present accused was actually armed with base ball bat and also that base ball bat was a deadly weapon. In the absence of such evidence and particularly non recovery of the weapon would certainly bring the case out of the ambit of Section 397 IPC. In taking this view, I am also fortified by the judgments of our own High Courts reported at MANU/DE/3149/2009 and 2011 Criminal Law Journal 901. For these very reasons, Court is of the view that prosecution has miserably failed to establish its case in respect of offence U/s 397 IPC charged against the present accused.
So far as the offence U/s 395/34 IPC is concerned, I am unable to subscribe to the arguments raised by Ld APP for the State. Both PW1 Sh. Ravinder Garg and PW2 Smt. Renu Garg had correctly identified accused Ishtkar in their previous depositions recorded on 29.05.10 and on 24.07.10. Had there been any element of fear of accused in their mind, they would not have identified even accused Ishtkar on the previous occasion. Moreover, there is nothing on record to show or even to suggest that there was any fear of present accused Sahid Ali in the mind of both the said witnesses. It is relevant to note that PW1 and PW2 were examined during trial and none of them even claimed before the Court that they were under any kind of fear or State V/s Sahid Ali (" Acquitted U/s 395/34 & 397 IPC & Convicted U/s 174A IPC ") Page 8 of 10 FIR No. 439/07; U/s 395/34,397 & 174A IPC; PS Adarsh Nagar threat from any corner whatsoever. Rather, both of them had been categorical in their respective testimonies that accused Sahid Ali was not amongst one of those 67 assailants who had committed dacoity in their house. Both the said witnesses did not identify present accused Sahid Ali even when there attention was drawn by Ld Additional Public Prosecutor towards him during trial.
According to the case of prosecution, public witnesses i.e PW1 Sh. Ravinder Garg and PW2 Smt. Renu Garg were the only two eye witnesses in this case. Thus, both these two witnesses alone could have supported the case of prosecution by deposing on the lines of prosecution story.
However, in view of aforesaid depositions made by said two public witnesses named above, the entire case of prosecution has fallen down like a pack of cards. In view of testimonies of said two public witnesses, the entire case of prosecution has become doubtful.
In view of aforesaid discussion, Court is of the view that prosecution has failed to prove the charges U/s 395/34 IPC as well as U/s 397 IPC against present accused namely Sahid Ali. Consequently, he stands acquitted in respect of said offences.
Nevertheless, the present accused has also been charged in respect of offence U/s 174A IPC on the allegations that he had absconded during the course of investigation and failed to appear before the Court despite publication of proclamation U/s 82(1) Cr.PC issued by the Court of law. In order to prove the said offence, prosecution has examined three witnesses i.e PW3 to PW5 named above. All the said three witnesses have fully supported State V/s Sahid Ali (" Acquitted U/s 395/34 & 397 IPC & Convicted U/s 174A IPC ") Page 9 of 10 FIR No. 439/07; U/s 395/34,397 & 174A IPC; PS Adarsh Nagar the case of prosecution on all material points.
PW3 and PW4 have been consistent in their depositions recorded during trial. The present accused could not impeach their testimonies through litmus test of cross examination. Both the said witnesses have duly corroborated each other on all material points. Moreover, accused did not dispute the factum regarding his absconding during the course of investigation of this case, in his statement U/s 313 Cr.PC recorded by the Court. That being so, relevant part of the reply given by him in his statement U/s 313 Cr.PC whereby he has admitted the case of prosecution in this regard, can be used as corroborative piece of evidence in terms of Section 313(4) Cr.PC. Furthermore, it is a matter of record that present accused Sahid Ali had absconded during the course of investigation and proclamation U/s 82(1) Cr.PC was issued against him by the Court of law and he was ultimately declared ' Proclaimed Offender' on 16.07.10.
In view of above, Court is of the view that prosecution has been successful in establishing its case in respect of offence U/s 174A IPC against the present accused. Consequently, accused Sahid Ali is hereby convicted U/s 174A IPC.
Announced in open Court today
dt. 15.05.2014 (Vidya Prakash)
Additional Sessions Judge04
North District, Rohini Courts,
Delhi: 15.05.2014
State V/s Sahid Ali (" Acquitted U/s 395/34 & 397 IPC & Convicted U/s 174A IPC ") Page 10 of 10