Delhi District Court
Sc No. 114/09, Fir No. 446/07, State vs . Mohd. Iqbal Page 1 Of 14 on 6 May, 2015
IN THE COURT OF SH. CHANDRA SHEKHAR, ADDITIONAL
SESSIONS JUDGE02 (CENTRAL)/TIS HAZARI COURTS/
DELHI
Sessions Case No. 114/09
Unique Case ID No. 02401R0349482008
FIR No. 446/2007
U/s: 393 IPC & 27 Arms Act
(Charged u/s 395 IPC r/w 511 IPC & 397/34 IPC)
PS: Karol Bagh
In the matter of:
STATE
Versus:
Mohd. Iqbal S/o Mohd. Irfan
R/o Fblock, Gali no. 8, Mandi wali gali,
Ganga Vihar, Gokalpuri, Delhi.
Date of Institution : 21.11.2008
Date of Reserving Judgment : 06.05.2015
Date of Pronouncement : 06.05.2015
Conclusion : ACQUITTAL
Pages: 1 to 16
JUDGEMENT:
1. CASE OF THE PROSECUTION:
Concisely, the case of the prosecution is that on 04.12.2007 at about 12:15 pm, four accused persons entered in the shop at 2 nd floor, 3782/20, Ragarpura, Karol Bagh, Delhi where, Sheikh Makshoor Ali was doing the work of Goldsmith. One of the accused persons had bolted the SC No. 114/09, FIR No. 446/07, State Vs. Mohd. Iqbal Page 1 of 14 door of the shop from inside, accused Ashok Kumar Solanki had pointed a countrymade pistol on Sheikh Makshoor Ali and threatened him to handover all the gold jewellery but Sheikh Makshoor Ali had bravely held the hand of that accused, snatched the countrymade pistol from him and recovered five cartridges from his pocket with the help of his co workers Anwar and Irfan. They also tried to apprehend other accused persons but, they all ran away. The matter was reported to the police.
2. REGISTRATION OF THE CASE, INVESTIGATION AND FILING OF CHARGE SHEET:
The police reached to the spot and removed one cartridge from the said countrymade pistol and registered the case vide case FIR No. 446/07 U/S 393 Indian Penal Code, 1861 (hereinafter referred as IPC) and u/s 27 of Arms Act, 1959 (hereinafter referred as Arms Act) in Police Station: Karol Bagh, Delhi on the statement of Sh. Sheikh Makshoor Ali S/o Sh. Abdul Awaal R/o H. No. 3782/20, 2 nd floor, Ragarpura, Karol Bagh, Delhi as per provisions u/s 154 Criminal Procedure Code, 1973 (hereinafter referred as Cr.P.C.). The police investigated the case, arrested accused Ashok Kumar Solanki and his other accomplices and thereafter, filed a chargesheet u/s 173 Cr.P.C.
against five accused persons namely Ashok Kumar Sonlanki, Sunil, Sikandar, Firoz Khan and Mohd. Iqbal u/s 395/397 IPC and u/s 27 of Arms Act in the court of Ld. area Magistrate.
SC No. 114/09, FIR No. 446/07, State Vs. Mohd. Iqbal Page 2 of 143. COMMITTAL OF THE CASE TO THE SESSIONS' COURT:
The Ld. area Magistrate took cognizance of the offence u/s 395/397 IPC and u/s 27 of Arms Act as per provisions u/s 190 (b) Cr.P.C, summoned the accused persons as per provisions u/s 204 Cr.P.C, supplied copies of the charge sheet and other relevant documents as per provisions u/s 207 Cr. P.C. and observing that as per Schedule 1 of the Cr.P.C.; the offences u/s 395/397 IPC are exclusively triable by the Sessions' Court, completed the committal proceedings u/s 209 Cr.P.C and committed the case to the Sessions' Court for trial.
4. FRAMING OF CHARGES AGAINST THE ACCUSED:
Ld. Addl. P.P. for the State started trial of the accused persons as per provisions u/s 226 Cr.P.C. Ld. Addl. P.P. for the State and Ld. Defence Counsel for the accused addressed their respective submissions on the point of charge as per provisions u/s 227 Cr.P.C which were considered as per provisions u/s 228 (1) Cr.P.C. A perusal of record showed, a prima facie case u/s 395 IPC r/w Section 511/34 IPC and u/s 397/34 IPC against accused Ashok Kumar Solanki, Sunil, Sikandar, Firoz Khan and Mohd. Iqbal. The offence u/s 25/54/59 Arms Act, 1959 and offence u/s 398 IPC were also prima facie made out against accused Ashok Kumar Solanki therefore, on 07.08.2009 charges under aforesaid sections were framed in writing against the respective accused persons as per provision u/s 228 (1) (b) Cr.P.C and as per provisions u/s 228 (2) Cr.P.C. the same were read over and explained to SC No. 114/09, FIR No. 446/07, State Vs. Mohd. Iqbal Page 3 of 14 them in their vernacular and were asked whether they plead guilty for the offence charged or claim to be tried. The accused persons did not plead guilty, but claimed trial.
5. PROSECUTION EVIDENCE ON RECORD:
The accused persons claimed trial, therefore, as per provision u/s 230 and 231 of Cr.P.C opportunities were given to Ld. Addl. P.P. for the State to lead prosecution evidence to prove the aforesaid charges against the accused persons. Ld. Addl. P.P. examined Sheikh Makshoor Ali (complainant on whose statement, case was registered) as PW1, Ajay Kumar (Assistant Nodal Officer, Bharti Airtel) as PW2, M. N. Vijayan (Nodal Officer, TATA Telly Services Ltd.) as PW3, Mohd. Mohsin (Public witness) as PW4, HC Chander Mohan (Duty Officer) as PW5, Ct. Jagdale (who helped the IO/SI Rajesh Shah and SI Maninder in investigation) as PW6, SI Rajesh Kumar Shah (First IO of the case) as PW7, Ct. Raj Kumar (who helped IO/SI Rajesh Kumar Shah during investigation) as PW8, Sh. Siddhartha Sharma (Ld. MM who conducted TIP of accused persons Firoz, Sikandar, Sunil and Iqbal) as PW9, Ms. I. B. Rani (DCP who gave sanction u/s 39 Arms Act) as PW10 and HC Ram Khiladi (MHCM) as PW11.
6. STATEMENT OF ACCUSED AND THEIR DEFENCE:
After completion of prosecution evidence, all incriminating evidences on record against the accused persons, were brought into their SC No. 114/09, FIR No. 446/07, State Vs. Mohd. Iqbal Page 4 of 14 notice as per provisions u/s 313 Cr.P.C and their explanations were recorded separately. The opportunities were given to the accused persons to lead defence evidence as per provisions u/s 233 Cr.P.C., but they neither led any defence evidence nor examined themselves u/s 315 Cr. P.C. though they stated in their examination u/s 313 Cr. P.C that they have been falsely implicated in the case.
7. ACCUSED MOHD. IQBAL WAS DECLARED PROCLAIMED OFFENDER:
After recording of statement u/s 313 Cr.P.C., the accused Mohd. Iqbal did not appear in the court on 19.12.2011 therefore, NBW was issued against him and thereafter, proceedings u/s 82 Cr.P.C. were conducted against him and on 18.02.2012 accused Mohd. Iqbal was declared Proclaimed Offender.
8. FINAL ARGUMENTS ON BEHALF OF STATE AND DEFENCE:
After examination of the accused u/s 313 Cr.P.C, the opportunities were given to Ld. Addl. P. P. for the State and Ld. Defence Counsels for the accused persons as per provisions u/s 234 & 314 Cr.P.C. to address oral final arguments and file memorandum of arguments if any.
Ld. Addl. Public Prosecutor Sh. Rakesh Mehta, on behalf of the State summed up his case as per provisions u/s 234 Cr.P.C.SC No. 114/09, FIR No. 446/07, State Vs. Mohd. Iqbal Page 5 of 14
Ld. Defence Counsels for the accused persons, except accused Mohd. Iqbal, who was absconding, also made their submissions and controverted the submissions made by Ld. Addl. PP for the state.
9. PASSING OF JUDGMENT AND ORDER ON SENTENCE AGAINST ALL ACCUSED PERSONS EXCEPT ACCUSED MOHD. IQBAL:
Ld. Predecessor of this court, after hearing the final arguments addressed by Ld. Addl. PP and Ld. Defence Counsels for all the accused persons (except accused Mohd. Iqbal) and considering them, convicted accused Ashok Kumar Solanki u/s 392/398 r/w section 511 IPC and u/s 25 Arms Act vide order dated 24.03.2012 and acquitted accused Sikandar, Sunil and Firoz. After hearing Ld. Addl. PP and Ld. Defence Counsel, Ld. Predecessor of this court sentenced the convict Ashok Kumar Solanki vide order dated 26.03.2012 to undergo RI for a period of five years for commission of offence punishable u/s 392/398/511 IPC and sentenced him to undergo RI for three years with a fine of Rs. 25,000/; in default to undergo SI for three months for offence u/s 25 Arms Act with benefit u/s 428 Cr.P.C.
10. ARREST OF ACUSED MOHD. IQBAL:
On 30.12.2014 accused Mohd. Iqbal was arrested by the police and a Kalandra u/s 41.1 (c) Cr.P.C. was filed before the Ld. MM Dr. Jagminder Singh who directed that the said Kalandra be put up SC No. 114/09, FIR No. 446/07, State Vs. Mohd. Iqbal Page 6 of 14 before the concerned Sessions' court on 05.01.2015. Therefore, accused Mohd. Iqbal was produced from judicial custody on 05.01.2015 before Ld. Predecessor of this court.
11. TAKING BAIL BONDS FROM ACCUSED MOHD. IQBAL AND HIS SURETY TO APPEAR BEFORE NEXT APPELLATE COURT U/S 437A Cr.P.C.
On 24.04.2015 accused Mohd. Iqbal was directed to execute personal bond for a period of six months in the sum of Rs. 10,000/ with one surety in the like amount to appear before the Appellate Court as and when directed by such Appellate Court in respect of any appeal or petition filed against this judgment passed by the court. The accused Mohd. Iqbal annexed his latest passport size photograph on his personal bond and his surety affixed her latest passport size photograph on surety bond. The accused and surety furnished their latest residential addresses and proof for the same with their respective bonds u/s 437A Cr.P.C.
12. FINAL ARGUMENTS ON BEHALF OF STATE AND ACCUSED MOHD. IQBAL:
Ld. Addl. Public Prosecutor Sh. Rakesh Mehta on behalf of the State has submitted that accused Mohd. Iqbal had refused to participate in TIP proceedings which itself, shows that accused Mohd. Iqbal had committed the offence and he had apprehension in his mind SC No. 114/09, FIR No. 446/07, State Vs. Mohd. Iqbal Page 7 of 14 that if the person against whom or witness in presence of whom, the offence was committed, is brought before him in Test Identification Parade, he will certainly identify him. PW1 Sheikh Makshoor Ali has identified accused Mohd. Iqbal during his deposition in the court therefore, accused Mohd. Iqbal may be convicted for the same offences for which, accused Ashok Kumar Solanki was convicted by the court as accused Mohd. Iqbal was one of the accomplices of accused Ashok Kumar Solanki.
Ld. Defence Counsel Sh. Y. D. Sharma for accused Mohd. Iqbal has submitted that accused Mohd. Iqbal had refused to participate in Test Identification Parade on the ground that his photo was shown by the police to the public witness. The name of the accused Mohd. Iqbal was not mentioned in the FIR. The public witness PW1 Sheikh Makshoor Ali stated in his deposition that accused Mohd. Iqbal was arrested from Bhajanpura but, the judicial record shows that accused Mohd. Iqbal was arrested from Laxmi Nagar. The identification of the accused Mohd. Iqbal first time, in the court is not admissible in evidence. PW4 Mohd. Mohsin was confronted on many aspects by Ld. Addl. PP for the state himself therefore, his testimony cannot be read or relied upon against accused Mohd. Iqbal and hence, he may be acquitted.
13. I have considered the submissions of Ld. Addl. PP for the state and Ld. Defence Counsel Sh. Y. D. Sharma for accused Mohd. Iqbal SC No. 114/09, FIR No. 446/07, State Vs. Mohd. Iqbal Page 8 of 14 and perused the judicial record. The judicial record shows that decision of the case is based on the testimony of PW1 Sheikh Makshoor Ali, PW 4 Mohd. Mohsin, PW7 SI Rajesh Kumar Shah (IO of the case) and PW 9 Ld. MM Sh. Siddhartha Sharma.
In the present case, as per judicial record, PW1 Sheikh Makshoor Ali had reported to the police in his statement Ex. PW1/A that:
"He was doing the work of jewellery manufacturing at 5521/74, Ragarpura. On 04.12.2007 at about 12:15 pm he was present at 2nd floor with his coworkers Anwar and Guddu @ Irfan. At that time, four persons entered into his shop and asked him to show gold jewellery but, suddenly, one person bolted the door of the shop from inside and one other person took out a countrymade pistol from his pocket and pointed the same on him and threatened "whatever gold jewellery is there, keep it out there otherwise, he will shoot him." He however, bravely had held the hand of the person who had pointed out the countrymade pistol on him. His co workers Anwar and Irfan tried to apprehend the other three persons but, they opened the latch of the door and ran away. He with the help of other aforesaid two co workers overpowered the person who was holding countrymade pistol. On enquiry, that person told his name as Ashok Kumar Solanki S/o Sh. Chandrabhan R/o Vill. Baachhmai PS: Amarpur, Teshil Kasgunj, Distt. Etah (U.P.). Five cartridges were found from his pocket. He made phone call at police control room no.
100. The police came and apprehended the accused Ashok Kumar Solanki and got recovered one cartridge from the aforesaid countrymade pistol. He had handed over five cartridges recovered from accused Ashok SC No. 114/09, FIR No. 446/07, State Vs. Mohd. Iqbal Page 9 of 14 Kumar Solanki also to the police. He told the police that the person from whom, the countrymade pistol and cartridges were recovered had come with three other accomplices who had run away but he (Ashok Kumar Solanki) has been apprehended. Legal action may be taken against them."
On the aforesaid statement, FIR Ex. PW5/A was registered. The PW1 Sheikh Makshoor Ali got exhibited the aforesaid statement as Ex. PW1/A and identified the accused Mohd. Iqbal alongwith other co accused persons in the court. However, in crossexamination, he has stated that:
"my brother Mohsin had identified the accused persons. He was on the ground floor. After the incident, I accompanied police persons to Bhajanpura from where, police apprehended three accused persons and I saw them at that time. The police brought those accused persons to police station. It was after four days of the incident. The police did not make any enquiries from the accused persons in my presence. The accused persons were got identified from me in the police station on that day. I do not know when the accused was got identified from Mohsin."
As per case law titled as Ronny v. State of Maharashtra, AIR 1998 Supreme Court 1251 it is held that:
"the identification of the accused by witness if he had an opportunity to interact with him or to notice his distinctive features lends assurance to his testimony in court and that the absence of corroborative evidence by way of test identification parade would not be material."SC No. 114/09, FIR No. 446/07, State Vs. Mohd. Iqbal Page 10 of 14
It is significant to note that in the present case PW1 Sheikh Makshoor Ali did not know accused Mohd. Iqbal prior to the incident. He could not know the name of accused Mohd. Iqbal even at the time of incident as only accused Ashok Kumar Solanki was apprehended on the spot and other accused persons had run away. The whole attention of PW1 Sheikh Makshoor Ali, at the time of incident, must have been on accused Ashok Kumar Solanki as he was having countrymade pistol in his hand and had pointed out the same on PW1 Sheikh Makshoor Ali and PW1 had held the hand of accused Ashok Kumar Solanki therefore, there was almost no chance to PW1 to see the other accused persons who had come to his shop alongwith accused Ashok Kumar Solanki and had run away after the incident. The PW1 has not stated in his deposition that accused persons were present in the shop for a considerable time and he had sufficient time and opportunity to see them. It is noteworthy that PW1 has not mentioned about the stature, colour complexion and built of the accused persons who had run away after the incident. The PW1 has specifically stated that accused persons were apprehended by the police from Bhajanpura and the accused persons were brought to the police station after four days of the incident. The incident had taken place on 04.12.2007 therefore, as per the deposition of PW1, accused persons were brought to the police station on 08.12.2007 and PW1 had identified the accused persons in the police station on that day. He has admitted in his crossexamination that he did not know the accused persons before identification in the police station.
SC No. 114/09, FIR No. 446/07, State Vs. Mohd. Iqbal Page 11 of 14As per case law titled as Dana Yadav @ Dahuand & Ors., Appellant v. State of Bihar, Respondent AIR 2007 Supreme Court 1355, it has been held that:
"identification of accused made for the first time in court by witnesses after more than two years from the date of incident, cannot be relied upon, specially when identification in court is not corroborated either by previous identification in identification parade or any other evidence, the conviction of accused cannot be based upon it."
It is most momentous that if, PW1 has no chance to see the accused persons, who had run away from the spot, how can he identify them at any point of time later either in police station or in the court. The PW7 IO/SI Rajesh Kumar Shah has stated that accused Mohd. Iqbal was arrested from a house no. J68, Gali no. 5, Laxmi Nagar, Delhi on 10.12.2007. He exhibited the arrest memo of accused Mohd. Iqbal as Ex. PW6/G. Accused Mohd. Iqbal was produced before the Ld. MM on 11.12.2007 and an application for test identification parade of the accused persons was moved before Ld. MM.
The PW9 Sh. Siddhartha Sharma, Ld. MM has stated in his examination in chief that when accused persons were produced before him on 11.12.2007, they all were in unmuffled face.
The PW4 Mohd. Mohsin has stated in his examination in chief that on the date of incident, he could not see the accused persons SC No. 114/09, FIR No. 446/07, State Vs. Mohd. Iqbal Page 12 of 14 properly.
It is apparent that there is material contradiction in deposition of PW1 Sheikh Makshoor Ali and PW7 SI Rajesh Kumar Shah on the point of arrest of accused persons including accused Mohd. Iqbal. PW1 has stated that accused persons were arrested from Bhajanpura on 08.12.2007. But, PW7 stated that they were arrested on 10.12.2007 from a house in Laxmi Nagar. Moreover, the accused persons, as per deposition of PW9, were produced in the court on 11.12.2007 in unmuffled face therefore, it seems that accused Mohd. Iqbal was justified in refusing his participation in TIP proceedings, as he was produced in the court in unmuffled face and was shown to PW1 Sheikh Makshoor Ali in the police station.
In view of above observations, it seems that submissions of Ld. Addl. PP for the state that accused Mohd. Iqbal had participated in the crime therefore, only he had refused to participate in the TIP proceedings, is not tenable and hence, is rejected. It is apparent that the prosecution has failed to prove the identity of accused Mohd. Iqbal beyond reasonable doubt and has also failed to prove the charges framed against him. Therefore, no adverse inference can be drawn against the accused because of his refusal in participation in TIP proceedings. Hence, case of the prosecution has not been proved against accused Mohd. Iqbal.
SC No. 114/09, FIR No. 446/07, State Vs. Mohd. Iqbal Page 13 of 1414. In view of the above discussion, it seems that though the Ld. Addl P.P. for the State has very ably conducted the case and vehemently argued the case for the State but his submissions lack support of cogent, credible and reliable evidence and they could not militate against the certitude of guilt of the accused Mohd. Iqbal. The Ld. Defence Counsel has raised the significant legal issues that facilitated in examination and analysis of prosecution evidence and judicial record. The police could not collect the sufficient incriminating evidence against the accused therefore, the case suffered with inherent, irrecoverable fatal defects and infirmities since the time of investigation and ultimately failed in its entirety. It is simply now, an expression in words that the case of the prosecution has not been proved beyond reasonable doubts, the fact is writ large and the scales of justice have heavily tilted in favour of the accused and against the State.
The verdict in last, must go in consonance with the initial presumption of innocence of accused and hence, the accused Mohd. Iqbal is acquitted forthwith in case FIR No. 446/07 PS Karol Bagh from all charges framed against him.
Ordered accordingly.
ANNOUNCED IN THE OPEN (CHANDRA SHEKHAR)
th
COURT ON 06 MAY, 2015 ASJ02 (Central)/THC/Delhi
SC No. 114/09, FIR No. 446/07, State Vs. Mohd. Iqbal Page 14 of 14