Delhi District Court
State vs Jamshed @ Monu on 28 August, 2024
IN THE COURT OF SHRI RAVINDRA KUMAR PANDEY,
ADDITIONAL SESSIONS JUDGE-03, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
SC No. 642/2019
CNR No. DLST01-007540-2019
STATE Vs. Jamshed @ Monu & Anr.
FIR No. 416/2019
PS: Ambedkar Nagar
U/S: 394/34 IPC & Section 397 IPC
28.08.2024
ID No. : 642/2019
CNR No. DLST01-007540-2019
Date of commission of offence : 02.09.2019
Date of institution of the case : 15.10.2019
Name of the complainant : Sh. Harsh S/o Sh. Rajender
R/o H.No. A-1/63, Madangir,
Ambedkar Nagar, New Delhi.
Name of accused persons and : 1. Jamshed @ Monu S/o Sh
addresses Kosher Ali, R/o H.No. 750, Gali
No. 14, L-Ist Sangam Vihar, New
Delhi.
2. Ashif @ Ashu S/o Meraj
Ahmed, R/o H.No. 986, Gali No.
20, L-1st Sangam Vihar, New
Delhi.
Offence complained of : Under Section 394/34 IPC
& Section 397 IPC
Offence charged for Under Section 394/34 IPC &
Under Section 397 IPC
Plea of the accused persons : Pleaded not guilty
Final order : Acquitted
State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 1 Digitally signed
by RAVINDRA
RAVINDRA KUMAR
KUMAR PANDEY
PANDEY Date:
2024.08.28
15:02:35 +0530
Date of judgment : 28.08.2024
JUDGMENT
1. The accused persons namely Jamshed @ Monu and Ashif @ Ashu has been prosecuted and were charged for the commission of offence punishable under Section 394/34 IPC and accused Jamshed @ Monu was additionally prosecuted and was charged for the commission of offence punishable U/s 397 IPC. 1.1 The case of the prosecution in brief is that on 02.09.2019 at about 02.00 pm, near Indian Oil Petrol Pump Service Road, Chirag Delhi within the jurisdiction of PS Ambedkar Nagar, both the accused persons in furtherance of their common intention had committed robbery of cash from the complainant Harsh and had also caused simple injury to the complainant in the process of committing robbery. It is further allegation against the accused Jamshed @ Monu that while committing the robbery, the accused Jamshed @ Monu had used the knife to cause injuries to the complainant and caused injuries to the complainant with the knife.
2. On the basis of the statement of complainant/victim Ex. PW1/A, the present FIR bearing no. 416/2019 police station Ambedkar Nagar was registered. After the completion of investigation, the charge-sheet was filed before the Court.
3. After compliance of Section 207 Cr.P.C, the case was committed to the Court of Sessions and during the trial the present case was assigned to this Court.
4. After hearing arguments on the point of charge, both the accused persons Jamshed @ Monu and Ashif @ Ashu were State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 2 Digitally signed RAVINDRA by RAVINDRA KUMAR KUMAR PANDEY PANDEY Date: 2024.08.28 15:02:41 +0530 charged vide order dated 05.12.2019 for commission of offence punishable U/s 394/34 IPC and accused Jamshed @ Monu was additionally charged for commission of offence punishable U/s 397 IPC. Both the accused persons pleaded not guilty and claimed trial in regard to their respective charges.
5. In support of its case, the prosecution has examined seven witnesses namely PW1 Sh. Harsh, PW2 Ct. Akhilesh, PW3 HC Sandeep, PW4 Dr. Nitish, PW5 Sh. Rajender Singh, PW6 HC Ajay Kumar and PW-7 Inspector O.P Thakur, during the trial.
6. It is pertinent to mention here that during trial both the accused persons had made the statement U/s 294 Cr.PC in which they admitted the genuineness and correctness of judicial TIP proceedings conducted by Ld. MM on 07.09.2019 as Ex. P-1 respectively.
7. After the conclusion of prosecution evidence, statements of both the accused persons were recorded U/s 313 Cr.P.C, in which all the incriminating evidence which came on the record, were put to both the accused persons. Both the accused persons denied the same and claimed that they are innocent and they were falsely implicated in the present case.
8. The accused Ashif @ Monu had opted to lead defence evidence towards his defence and accordingly, he himself examined as defence witness/DW-1 and other accused Jamshed @ Monu had opted not to lead any defence evidence.
9. I have heard Ld. Additional Public Prosecutor on behalf of State and Sh. Ajay Sharma, Ld. Counsel for both the accused persons. I have also gone through the material available on record including the testimonies of witnesses examined during trial and other evidence as produced during the trial.
State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 3 Digitally signed by RAVINDRA RAVINDRA KUMAR KUMAR PANDEY PANDEY Date:
2024.08.28 15:02:47 +0530
10. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses examined during trial. The testimonies of prosecution witnesses are detailed as under:-
EVIDENCE ON RECORD
11. PW-1 Sh. Harsh:- He is the complainant/victim in the present case. He deposed that on 02.09.2019, he was returning from Subhash Nagar by metro at about 02.15 pm and he got down at Chirag Delhi Station and came out from the station and he was waiting for an Auto, since no auto was available so, he started walking. He further deposed that he crossed petrol pump and was walking on the footpath of the road and suddenly one boy caught his hand and put a knife on his neck and that boy said that witness had picked up his pocket.
11.1 He deposed that the said boy had insisted upon him to give the mobile and other belongings of the witness to that boy. He also identified the accused Jamshed as the said boy who put the knife on the neck of the witness. He further deposed that thereafter, another boy came and he removed his spectacles and he had also took his hand free wire of phone and he had also removed Rs. 12,500/- (currency notes of Rs. 500/- denomination) from the pocket of the witness.
11.2 He further deposed that the currency notes were in the denomination of Rs. 500/- each. He further deposed that he may not be able to identify the said other boy. He deposed that he tried to resist the attempt of those persons. He further deposed that a scuffle took place.
State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 4 Digitally signed by RAVINDRA RAVINDRA KUMAR KUMAR PANDEY PANDEY Date:
2024.08.28 15:02:53 +0530 11.3 He deposed that accused Jamshed had tried to cause injury by the knife to him, but he caught his hand and witness sustained injury from the knife of accused Jamshed at his right hand thumb and some blood came out. He deposed that witness pulled them and he himself moved towards the road and one uncle/public person came on his scooty and he stopped and came towards the witness.
11.4 He further deposed that the person who had snatched his money had run away by jumping the wall of the forest and the accused Jamshed was apprehended with the help of that person who was CRPF official.
11.5 He further deposed that they brought accused Jamshed to police station Ambedkar Nagar and the police official made inquiry from him regarding the incident and his statement Ex. PW1/A was recorded. He deposed that he also produced the knife used by accused Jamshed to police which he handed over to the police.
11.6 He further deposed that the police prepared the sketch of the knife as Ex. PW1/B. He deposed that knife was sealed in a pullanda by the police and seized and seizure memo Ex. PW1/C was prepared. He further deposed that accused Jamshed was arrested by the police and the arrest memo of accused Jamshed Ex. PW1/D was prepared.
11.7 He further deposed that his money, spectacles and hand free wire were not recovered and on interrogation of accused Jamshed done by police, he disclosed the name of his associates as Asif and he was the resident of the area of Sangam Vihar.
State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 5 Digitally signed RAVINDRA by RAVINDRA KUMAR KUMAR PANDEY Date: 2024.08.28 PANDEY 15:02:58 +0530 11.8 He deposed that he was not called by the police for identifying the said Asif by the police nor the said Asif was arrested in his presence. He deposed that he got himself medically examined in AIIMS Trauma Center and his MLC was prepared as Mark 1/X. 11.9 He further deposed that he has again seen other accused Asif present in the Court on the date of his examination and further deposed that he may be the same person who had snatched his money, spectacles and hand free wire.
11.10 He voluntarily deposed that he was not sure. He had correctly identified the case property i.e. knife as Ex. P-1 as recovered from the accused Jamshed. He further deposed that police did not visit the place of incident with him. He further deposed that he had identified his signature on the site plan Ex. PW1/E. He voluntarily deposed that police obtained his signature on this paper in the police station.
11.11 During cross examination made on behalf of accused Asif, he replied that he cannot say if the accused Asif who was present in the Court was the second assailant of the incident but there was another person with accused Jamshed in the incident.
11.12 He further replied that there were only two persons in the incident. He replied that he was not informed by the police at any time regarding apprehension of other accused, nor his money was recovered. He replied that he did not visit police station after the day of incident.
11.13 He further replied that there was no gathering of people at the spot when incident took place. He replied that he was alone and there were no CCTV camera installed at the spot.
State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 6 Digitally signed by RAVINDRA RAVINDRA KUMAR KUMAR PANDEY PANDEY Date:
2024.08.28 15:03:03 +0530 He replied that he was shouting for help but vehicles were moving fast on the road. He further replied that he had called police on 100 number. He again replied that he did not call police but some public person had called the police. He replied that he cannot tell the name of said person. He further replied that he cannot tell the time of call.
11.14 He replied that public persons had gathered after the incident and no police officials came at the spot. He replied that he and his brother went to AIIMS Hospital but police official was not with them.
11.15 He replied that police official did not meet him in the AIIMS Hospital and he had given his complaint in writing on 02.09.2019. He denied the suggestion that no such incident had taken place. He replied that the second assailant may be the some other person and not the accused Asif as he was not very much sure.
11.16 During cross examination made on behalf of accused Jamshed, he replied that there was no Auto Stand near the spot.
He further replied that the Auto Stand was about 100-150 meter away from the spot. He denied the suggestion that there was no auto stand.
11.17 He replied that no specific auto stand constructed at that place. He replied that he did not notice the police booth on the day of incident as he was walking and talking on his mobile. He replied that he had stated to the police in his complaint that his hand free wire, spectacles were taken away. The witness was confronted with the complaint Ex. PW1/A where these facts were not recorded. He replied that 10-15 public persons had gathered State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 7 Digitally signed RAVINDRA by RAVINDRA KUMAR KUMAR PANDEY Date: 2024.08.28 PANDEY 15:03:09 +0530 at the spot after the incident. He replied that he cannot tell the name of TSR Driver who brought them to police station. He replied that he did not pay fare to the TSR driver. He further replied that he did not went to the spot with the police.
11.18 He replied that he did not come to the Saket Court nor he identified the accused Asif in Saket Court. He replied that he did not give any statement to the police regarding identification of accused Asif in the Saket Court.
11.19 He replied that they reached at police station at 02.45 pm and initially, he remained at the police station for one and a half hours. He replied that he cannot tell when he left the police station but he remained there for a long time.
11.20 He replied that he had lifted the knife from the spot and gave to the police in the police station. He replied that he did not mention in his complaint that he had lifted the knife from the spot and gave to the police in the police station. He further replied that he did not tell to the police that complaint Ex. PW1/A was recorded by his brother namely Amit. He replied that Amit as well as CRPF official were not made a witness in the present case.
11.21 He replied that from the police station, he went to the hospital for MLC and he remained in the hospital from 04.30 pm to 07.00 pm but he did not remember the exact time. He further replied that from the hospital, he went to his house. He replied that then he received a call from police official namely Ram Pal and he asked him to come to police station and he went to police station again and remained in the police station till 09.45 pm. He replied that he had given his complaint Ex.
State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 8 Digitally signed RAVINDRA by RAVINDRA KUMAR KUMAR PANDEY Date: 2024.08.28 PANDEY 15:03:32 +0530 PW1/A to police after returning from the hospital.
11.22 He replied that the complaint was given before 09.45 pm and he had also singed the document which was relating to the knife which was already prepared by the police official.
11.23 He denied the suggestion that no money, spectacles and hand free wire were taken away from him. He further denied the suggestion that he had given the false statement to the police station. He denied the suggestion that there was some quarrel between CRPF officials and some local police persons and the accused Jamshed was falsely implicated in the case. He denied the suggestion that he deposed falsely.
12. PW-2 Ct. Akhilesh:- He deposed that on 02.09.2019, he was posted as Constable at Police Station Dr. Ambedkar Nagar and on that day, he was on emergency duty with SI Rajpal. He further deposed that in the afternoon, when they returned to Police Station after attending a call, Duty Officer had handed over the custody of one person Jamshed @ Monu and a knife recovered from him.
12.1 He deposed that Duty Officer further revealed that complainant and public persons had left him in the police station and since the complainant was suffering injury on his hand, he had gone to AIIMS Trauma Centre. He further deposed that IO directed him to take the custody of accused Jamshed and left for AIIMS Trauma Centre as he had also received DD in that regard.
12.2 He deposed that in the meantime, complainant Harsh had also reached the police station and after some time, IO also reached there. He further deposed that IO made inquiries from the complainant and got the FIR registered through Duty Officer State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 9 Digitally signed RAVINDRA by RAVINDRA KUMAR KUMAR PANDEY Date: 2024.08.28 PANDEY 15:03:44 +0530 and thereafter, he along with IO, complainant and accused went to the spot near Indian Oil Petrol Pump, BRT Road.
12.3 He further deposed that IO prepared the site plan at the instance of the complainant and thereafter, IO prepared the scaled sketch of the recovered knife as Ex. PW1/D and thereafter IO sealed the recovered knife in the pullanda with the seal of RS and seized the same and seizure memo as Ex. PW1/C was prepared.
12.4 He deposed that seal after use was handed over to him. He further deposed that after that accused Jamshed @ Monu was arrested and memo Ex. PW1/D was prepared and his personal search was also conducted and memo Ex. PW2/A was prepared. He correctly identified the accused Jamshed @ Monu during his examination in the Court.
12.5 He further deposed that IO had also recorded the disclosure statement of the accused. He further deposed that IO recorded his statement. He correctly identified the case property i.e. knife as Ex. P-1.
12.6 During cross examination made on behalf of accused Asif @ Ashu, he denied the suggestion that on 02.09.2019, he was not on his official duty. He replied that no independent public person was joined in the investigation at the spot. He further replied that IO had not requested any employee or official from the nearby petrol pump at the time of conducting the spot investigation.
12.7 He replied that IO had not seized any CCTV footage from the spot or from petrol pump in his presence. He voluntarily replied that petrol pump was at some distance from the spot. He State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 10 Digitally signed by RAVINDRA RAVINDRA KUMAR KUMAR PANDEY PANDEY Date:
2024.08.28 15:03:52 +0530 replied that the sketch of recovered knife was prepared at the spot. He further replied that the knife was 18 cm long and its blade was 8 cm long approximately.
12.8 He replied that the word initiating with J was written on the knife. He further replied that IO handed over the rukka to the Duty Officer and they left for the spot where sketch of knife was prepared. He replied that he cannot say if the FIR was registered at first or the seizure memo was prepared as both the documents were prepared at different places.
12.9 He denied the suggestion that knife was not recovered from the accused Jamshed @ Monu or that he signed all the memos while sitting in the PS at later stage at the instance of the IO. He further denied the suggestion that he had not visited the spot as stated by him or that no spot investigation was carried out or that he deposed falsely in this regard. 12.10 He has not been cross examined on behalf of accused Asif despite grant of opportunity.
13. PW-3 HC Sandeep:- He deposed that on 04.09.2019, he was posted as Constable at Police Station Dr. Ambedkar Nagar and he had joined the investigation of this case with IO SI Rajpal Singh. He further deposed that he alongwith IO SI Rajpal Singh took out the accused Jamshed @ Monu from the lock-up and went out in search of another offender namely Asif.
13.1 He further deposed that they went to the house of Asif at Gali No. 20, L-1st, Sangam Vihar, where he was found present. He deposed that accused Asif @ Ashu was arrested and his personal search was conducted and memos Ex. PW 3/A and PW 3/B were prepared. He further deposed that he had correctly identified both the accused persons during his examination. He State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 11 Digitally signed by RAVINDRA RAVINDRA KUMAR PANDEY KUMAR Date:
PANDEY 2024.08.28 15:03:58 +0530 deposed that IO had recorded the disclosure statement of accused Asif. He further deposed that accused Asif had also pointed out the place of incident. He deposed that IO had prepared the pointing out memo as Ex. PW 3/D in that regard. He deposed that IO had recorded his statement to this effect. 13.2 During cross examination made on behalf of accused Asif @ Monu, he replied that he did not remember as to how many floors were constructed on the address from where the accused Asif @ Ashu was arrested. He further replied that the family members of the accused were present at that time. He further replied that the father of accused was informed about the arrest of the accused, however, the signatures of the family members were not obtained on the arrest documents. 13.3 He replied that none of the neighbour was joined in the arrest proceedings of the accused. He replied that IO had made departure entry from the police station. He further replied that he did not remember the DD number vide which departure entry was made.
13.4 He denied the suggestion that he had not joined the investigation with IO to the arrest accused Asif @ Ashu or that he had not gone to the house of the accused for his arrest. He further denied the suggestion that he had deposed falsely at the instance of the IO.
14. PW-4 Dr. Nitish :- He deposed that he was working as Senior Resident at JPNATC, New Delhi. He further deposed that he has been deputed to depose on behalf of Dr. Sonu Kumar who had left the services of the hospital and his present whereabouts are not known. He had identified the signature of Dr. Sonu Kumar on MLC No. 500192302 of injured Harsh as prepared by State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 12 Digitally signed by RAVINDRA RAVINDRA KUMAR KUMAR PANDEY PANDEY Date:
2024.08.28 15:04:04 +0530 Dr. Sonu Kumar as Mark 1/X and MLC as Ex. PW4/P-1.
14.1 He further deposed that as per the record of the MLC, the nature of injury was simple blunt in nature. He had produced and proved the authority letter issued by Faculty Incharge as Ex. PW4/P2. He further deposed that he had also brought the attested copy of Discharge Summery of injured Harsh and proved the same as Ex. PW4/P3.
14.2 During cross examination made on behalf of both the accused persons, he replied that he had neither worked with Dr. Sonu Kumar nor the MLC was prepared in his presence. He replied that he has no personal knowledge about the case. He replied that he cannot identify the signature of Dr. Sonu Kumar as he had not worked with him. He further replied that the injury mentioned in the MLC could not be a self inflicted injury.
15. PW-5 Sh. Rajender Singh:- He deposed that he was working as a Record Clerk at AIIMS Trauma Centre since 2006 and he had seen Dr. Sonu Kumar while writing and signing in his official course of duty. He deposed that he had also seen his handwriting and signature in the record duly maintained in the hospital and he had identified the signature of Dr. Sonu Kumar on MLC as Ex. PW4/P1. He further deposed that Dr. Sonu Kumar had left the services of the hospital and his present whereabouts are not known.
15.1 During cross examination made on behalf of both the accused persons, he replied that the MLC was not prepared in his presence. He further replied that he has no personal knowledge about the case. He denied the suggestion that he cannot identify the signature of Dr. Sonu Kumar.
State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 13 Digitally signed RAVINDRA by RAVINDRA KUMAR KUMAR PANDEY PANDEY Date: 2024.08.28 15:04:10 +0530
16. PW-6 HC Ajay Kumar:- He deposed that on 02.09.2019, he was posted as Head Constable at Police Station Ambedkar Nagar and on that day, he was on duty as duty officer from 04.00 PM to 12.00 midnight and at around 10.00 PM, one rukka was placed before him by SI Rajpal for registration of the FIR. 16.1 He further deposed that on the basis of said rukka, he registered the present FIR and investigation was handed over to SI Rajpal. He proved the copy of FIR as Ex. PW6/P-1. He further deposed that he had also made endorsement on the rukka as Ex. PW6/P-2.
16.2 He further deposed that he had also issued the Certificate Under Section 65-B of Indian Evidence Act as Ex. PW6/P-
3. He deposed that he had also lodged GD number 57-A and GD No. 63-A in this case. He proved the attested copies of the same as Ex. PW 6/P-4 and Ex. PW/ 6-P-5.
16.3 During cross examination made on behalf of both the accused persons, he replied that he has no personal knowledge about the facts of the case.
17. PW-7 Inspector O.P Thakur:- He deposed that on 02.09.2019, he was working and posted as SHO Police Station Ambedkar Nagar, New Delhi. He further deposed that on that day, DD No.57A and 63A were recorded in the Police Station and the same were marked to SI Rajpal Singh. He further deposed that SI Rajpal Singh had expired as on date, however, he had worked under him and the investigation of this case was conducted under the supervision of Inspector O.P Thakur. He further deposed that he can also identify his handwriting and signature as he had seen him while writing and signing in his official course of duties.
17.1 He further deposed that SI Rajpal had attested the State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 14 Digitally signed by RAVINDRA RAVINDRA KUMAR KUMAR PANDEY PANDEY Date:
2024.08.28 15:04:15 +0530 complaint given by the complainant Harsh as Ex.PW1/A which bears signature of SI Rajpal at point B. He deposed that the rukka exhibited as Ex. PW6/P-2 bears the signature of SI Rajpal at point B. 17.2 He further deposed that the site plan as Ex.PW1/E was prepared. He deposed that the sketch of the recovered knife and its seizure memo as Ex.PW1/B & Ex.PW1/C were prepared and it bears the signature of SI Rajpal at point C. 17.3 He deposed that the disclosure statement of accused persons Jamshed @ Monu and Asif were recorded by SI Rajpal during investigation. He further deposed that the pointing out memo was prepared by SI Raj Pal at the instance of accused Asif as Ex.PW3/D which bears the signature of SI Rajpal at point C. He further deposed that the pointing out memo prepared by SI Rajpal at the instance of accused Jamshed as Ex.PW7/P-1 which bearing the signature of SI Rajpal at point A. 17.4 He deposed that the arrest and personal search memos of accused persons were prepared as Ex.PW1/D, Ex.PW3/A, Ex.PW3/B and Ex.PW2/A which bears the signature of SI Rajpal at point C. He further deposed that the application for conducting the judicial TIP of accused persons as Ex.P-1 also bears the signature of SI Rajpal at point C. 17.5 He further deposed that during the investigation, IO SI Rajpal had also recorded the statement of PWs as and when they joined the investigation with him as Ex.PW7/P-2. He further deposed that IO SI Rajpal had also prepared the charge-sheet after collecting all the necessary documents and statements of the witnesses as Ex.PW7/P-3 and bears the signature of SI Rajpal at point A and his signature at point B, which he had signed being State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 15 Digitally signed by RAVINDRA RAVINDRA KUMAR KUMAR PANDEY Date:
PANDEY 2024.08.28 15:04:21 +0530 the SHO of PS Ambedkar Nagar.
17.6 During cross examination made on behalf of both the accused persons, he replied that on 02.09.2019, IO SI Rajpal Singh was on emergency duty and he was assigned the investigation of this case. He further replied that he was assigned the investigation of the present case vide DD No.57A as Ex.PW6/P-4.
17.7 He further replied that he had not investigated the case but very much forwarded the charge-sheet after going through the entire investigation as well as documents available in the charge-sheet.
17.8 He denied the suggestion that since he had not conducted investigation of this case personally, therefore, he had no personal knowledge about the proceedings and the investigation was conducted by deceased IO SI Rajpal. 17.9 He further denied the suggestion that he had not correctly identified the signature of SI Rajpal on the documents as the said documents were not prepared in his presence. He further denied the suggestion that he deposed falsely being the then SHO of PS Ambedkar Nagar.
FINAL ARGUMENTS ADVANCED ON BEHALF OF LEARNED ADDITIONAL PUBLIC PROSECUTOR FOR THE STATE
18. It is argued on behalf of the State by Ld. Additional PP for the State that case of the prosecution against the accused Jamshed @ Monu and Asif @ Ashu is duly proved in regard to the charge of offence punishable U/s 394/34 IPC. It is further submitted that the case of prosecution is also duly proved in State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 16 Digitally signed by RAVINDRA RAVINDRA KUMAR KUMAR PANDEY PANDEY Date:
2024.08.28 15:04:26 +0530 regard to the charge of offence punishable U/s 397 IPC against accused Jamshed @ Monu. It is submitted that accused Jamshed @ Monu and Asif @ Ashu were actively involved in the commission of offence of the present case. It is further submitted that accused Jamshed was apprehended at the spot as deposed by victim PW1.
18.1 It is further submitted that victim had also identified the knife which was used by the accused Jamshed against him in the commission of the present case against him. It is further submitted that accused Asif was arrested during the investigation of the case and during examination of the victim as PW1, he could not identified due to lapse of time from the date of incident to the date of examination of the witness. It is further submitted that accused Jamshed @ Monu and Asif @ Ashu are liable to be convicted for commission of offence punishable U/s 394/34 IPC.
It is further submitted that accused Jamshed @ Monu is also liable to be convicted for commission of offence punishable U/s 397 IPC.
FINAL ARGUMENTS ADVANCED ON BEHALF OF LEARNED DEFENCE COUNSEL
19. It is argued on behalf of accused persons by Ld. Defence counsel Sh. Ajay Sharma that as per the case of prosecution, the victim Harsh/PW-1 did not identified the accused Asif and as per allegation other accused Jamshed @ Monu was apprehended at the spot.
19.1 It is further argued on behalf of both the accused persons that the place of incident was the crowded place. However, no public witness was associated during the State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 17 Digitally signed by RAVINDRA RAVINDRA KUMAR KUMAR PANDEY PANDEY Date:
2024.08.28 15:04:43 +0530 investigation. It is further submitted that No CCTV Camera or any other corroborating evidence collected during the investigation from the place of incident or from the nearby place of incident to corroborate the allegation against the accused persons.
19.2 It is further submitted that the accused Asif was arrested later on and no evidence came against him regarding his involvement in the present case.
19.3 It is further submitted that the incident occurred due to the sudden fight between the parties which was converted into the allegation of offence punishable U/s 397 IPC and in the alleged incident, the accused Jamshed @ Monu had also received injuries and no investigation was carried out by the investigating agency regarding the injuries caused to him.
19.4 It is further submitted that during cross examination of complainant/PW1, he deposed that he did not call the police but some public person had called the police. However, no such public person was associated during the investigation. He further submitted that police did not came at the spot and witness went to the police station on 02.09.2019.
19.5 It is further submitted on behalf of the accused persons that complainant/PW1 also deposed that police official did not met him in the AIIMS Hospital. It is further submitted that witness /PW1 had also made material improvement from his complaint and he had stated that his hand free wire and spectacles were taken away in the incident. However, no such facts came in his complaint Ex. PW1/A. 19.6 It is further submitted that witness/PW1 had deposed State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 18 Digitally signed RAVINDRA by RAVINDRA KUMAR KUMAR PANDEY Date: 2024.08.28 PANDEY 15:04:51 +0530 that he was taken to the hospital by his brother. However, his brother was not associated as witness in the present case and neither the TSR driver who allegedly took the victim to the hospital was associated in the investigation.
19.7 It is further submitted that witness/PW1 had deposed that he had lifted the alleged knife used in the commission of offence from the spot and handed over to the police. However, the said fact was not mentioned in the complaint of the complainant.
19.8 It is submitted that witness PW1 deposed that his complaint was recorded by his brother Amit. However, no such person namely Amit was associated in the investigation and this fact came in the cross examination of PW1.
19.8 It is further submitted that no recovery was effected from the accused persons during the investigation. 19.9 It is further submitted that the case of prosecution against the accused Jamshed @ Monu and Asif @ Ashu in regard to the charge of offence punishable U/s 394/34 IPC and in regard to the charge of offence punishable U/s 397 IPC against the accused Jamshed @ Monu is not proved beyond reasonable doubt. Hence, both the accused persons are liable to be acquitted from the present case.
20. The legal position in regard to the circumstances of last seen and circumstantial evidence as settled by Hon'ble Supreme Court of India in various judgments are reproduced as under:-
CIRCUMSTANCE OF LAST SEEN:
21. Hon'ble Supreme Court of India in case titled as State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 19 Digitally signed RAVINDRA by RAVINDRA KUMAR KUMAR PANDEY PANDEY Date: 2024.08.28 15:05:16 +0530 "Nizam & Anr. vs. State of Rajasthan", Crl. Appeal No. 413/2007, decided on 04.09.2015, discussed the law regarding last seen theory. It was observed: - "Elaborating the principle of "last seen alive" in State of Rajasthan vs. Kashi Ram, (2006) 12 SCC 254, this Court held as under:- "23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re. (AIR 1960 Mad 218)" The above judgment was relied upon and reiterated in Kiriti Pal vs. State of West Bengal, (2015) 5 Scale 319."
21.1. Further, in Ramreddy Rajeshkhanna Reddy & Anr vs State Of Andhra Pradesh, Appeal (Crl.) 997 of 2005, Hon'ble Supreme Court of India had held as follows:-
State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 20 Digitally signed RAVINDRA by RAVINDRA KUMAR KUMAR PANDEY Date: 2024.08.28 PANDEY 15:05:25 +0530 "It is now well-settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well-settled that suspicion, however, grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. [See Anil Kumar Singh v. State of Bihar, (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P. (2005) 7 SCC 603].
The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case courts should look for some corroboration."
21.2 In case of State of U.P. v. Satish, Appeal (Crl.) 256-257 of 2005, with regard to last-seen theory following was held as under:-
"The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses."
State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 21 RAVINDRA Digitally signed by RAVINDRA KUMAR KUMAR PANDEY Date: 2024.08.28 PANDEY 15:05:32 +0530 LEGAL POSITION ON CIRCUMSTANTIAL EVIDENCE
22. Hon'ble Supreme Court of India in the judgment titled as " Anwar Ali and Another Vs. The State of Himachal Pradesh", Crl Appeal No. 1121/2016 dated 25.09.2020 has held as under:-
" 5.4 It is also required to be noted and it is not in dispute that this is a case of circumstantial evidence. As held by this Court in catena of decisions that in case of a circumstantial evidence, the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. In the case of Babu (supra), it is observed and held in paragraphs 22 to 24 as under:
"22. In Krishan Vs. State (2008) 15 SCC 430, this Court after considering a large number of its earlier judgments observed as follows: (SCC p. 435, para 15) "15. ... This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
(iii) the circumstances, taken cumulatively, should form a chain State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 22 Digitally signed by RAVINDRA RAVINDRA KUMAR KUMAR PANDEY PANDEY Date:
2024.08.28 15:05:40 +0530 so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir Vs. State of Maharashtra (1982) 2 SCC 351)"
22.1 In Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116 while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, para 153)
(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not " may be" established;
(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused,that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) the circumstances should be of a conclusive nature and tendency;
(iv) they should exclude every possible hypothesis except the one to be proved; and
(v) there must be a chain of evidence so complete as not to leave State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 23 Digitally signed RAVINDRA by RAVINDRA KUMAR KUMAR PANDEY Date: 2024.08.28 PANDEY 15:05:46 +0530 any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
22.2 A similar view has been reiterated by this Court in State of U.P Vs. Satish (2005) 3 SCC 114 and Pawan Vs. State of Uttaranchal (2009) 15 SCC 259.
5.5 Even in the case of G. Parshwanath (supra), this Court has in paragraphs 23 and 24 observed as under:
"23. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the Court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although, there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts.
24. In deciding the sufficiency of the circumstantial evidence for State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 24 RAVINDRA Digitally RAVINDRA signed by KUMAR KUMAR PANDEY Date: 2024.08.28 PANDEY 15:05:53 +0530 the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court".
22.3 In Shivaji Chintappa Patil Vs. State of Maharashtra, Crl. Appeal No. 1348/2013 dated 02.03.2021, Hon'ble Apex Court observed as under:
"11. The law with regard to conviction on the basis of circumstantial evidence has been very well crystallized in the judgment of this Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra:-
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 25 Digitally signed RAVINDRA by RAVINDRA KUMAR KUMAR PANDEY Date: 2024.08.28 PANDEY 15:06:00 +0530 (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicted that the circumstances concerned "must or should" and not "may be"
established. There is not only a grammatical but a legal distinction between " may be proved" and " must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade Vs. State of Maharashtra (1973) 2 SCC 793 where the observations were made: [ SCC para 10, p. 807; SCC (Cri) p. 1047.
"19.... Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between ' may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 26 Digitally signed RAVINDRA by RAVINDRA KUMAR KUMAR PANDEY PANDEY Date: 2024.08.28 15:06:31 +0530 22.4 Further, in State of Odisha Vs. Banabihari Mohapatra and Anr., Special Leave Petition (Crl.) No. 1156/2021, dated 12.02.2021, Hon'ble Supreme Court held as under:-
"35. Before a case against an accused can be said to be fully established on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn must fully be established and the facts so established should be consistent only with the hypothesis of guilt of the accused. There has to be a chain of evidence so complete, as not to leave any reasonable doubt for any conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the Accused.
36. In Shanti Devi v. State of Rajasthan reported in (2012) 12 SCC 158, this Court held that the principles for conviction of the accused based on circumstantial evidence are:-
"10.1. The circumstances from which an inference of guilt is sought to be proved must be cogently or firmly established.
10.2. The circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused.
10.3. The circumstances taken cumulatively must form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else.
10.4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
37. Keeping the above test in mind, we have no iota of doubt that the State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 27 Digitally signed by RAVINDRA RAVINDRA KUMAR KUMAR PANDEY Date: 2024.08.28 PANDEY 15:06:40 +0530 Trial Court rightly acquitted the Accused Respondents. There is a strong possibility that the accused, who was as per the opinion of the doctor who performed the autopsy, intoxicated with alcohol, might have accidentally touched a live electrical wire, may be while he was asleep. The impugned judgment of the High Court dismissing the appeal on the ground of delay does not call for interference under Article 136 of the Constitution of India.
38. It is well settled by a plethora of judicial pronouncement of this Court that suspicion, however strong cannot take the place of proof. An accused is presumed to be innocent unless proved guilty beyond reasonable doubt. This proposition has been reiterated in Sujit Biswas v. State of Assam reported in AIR 2013 SC 3817.
22.5 In Kali Ram v. State of Himachal Pradesh reported in AIR 1973 SC 2773, this Court observed:-
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought is to be established by circumstantial evidence."
22.6 In the case titled as "Anjan Kumar Sharma Vs. State of Assam" (2017) 14 SCC 359, it was observed:
"(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' not and 'may be' established;
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not the explainable on any other hypothesis except that the accused is guilty;
State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 28 Digitally signed RAVINDRA by RAVINDRA KUMAR KUMAR PANDEY Date: 2024.08.28 PANDEY 15:06:47 +0530 (3) The circumstances should be of a conclusive nature of tendency; (4) They should exclude every possible hypothesis except the one to be provided; and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must shown that in all human probability the act must have been done by the accused (See: Sharad Birdhichand Sarda v. State of Maharashra (1984) 4 SCC 116; M G Agarwal v. State of Maharashtra AIR 1963 SC 200)."
22.7 The principles with regard to appreciation of circumstantial evidence have also been explained in Gagan Kanojia Vs. State of Punjab (2016) 13 SCC 516.
Therefore, the principle, as laid down in aforesaid judicial dicta, is that in cases based on circumstantial evidence, circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. The various circumstances in the chain of events must be such so as to rule out the reasonable likelihood of innocence of accused. The missing of important link snaps the chain of circumstances and the other circumstances cannot in any manner establish guilt of accused beyond all reasonable doubts.
23. Section 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 State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 29 Digitally signed RAVINDRA by RAVINDRA KUMAR KUMAR PANDEY Date: 2024.08.28 PANDEY 15:06:54 +0530 with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Section 397 IPC read as under
Robbery, or dacoity, with attempt to cause death or grievous hurt
24. 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.
THE REASON FOR DECISION
25. In the present case, in order to prove the charge of offence punishable U/s 394/34 IPC against accused Jamshed @ Monu and Asif @ Ashu and in order to prove the charge punishable U/s 397 IPC against the accused Jamshed @ Monu, the prosecution has relied upon the circumstantial evidence as well as last seen evidence and in its support, the prosecution has relied upon the testimony of victim Harsh who was examined as PW1.
25.1 As per the complaint of the complainant, victim PW1 Harsh on 02.09.2019 at about 02.00 pm when he was waiting for TSR near Indian Oil Petrol Pump, Service Road Chirag Delhi within the jurisdiction of PS Ambedkar Nagar, two boys came while walking and out of those two boys, one boy had put vegetable cutting knife on the neck of the victim and other boy had asked to hand over whatever he was possessing in his pocket. It is further alleged in the complaint that when the complainant had refused and grabbed the knife in his hand, he received minor injuries on his thumb. It is further alleged that another boy had removed Rs. 12,500/- from his pocket forcibly State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 30 Digitally signed RAVINDRA by RAVINDRA KUMAR KUMAR PANDEY PANDEY Date: 2024.08.28 15:07:01 +0530 and flee away from that place.
It is further alleged that complainant had apprehended another boy and raised alarm and some of the public persons had assisted him. It is further alleged that one of the public person who came there in an auto took the complainant and accused Jamshed @ Monu to the PS Ambedkar Nagar. It is further alleged in the complaint that accused Jamshed @ Monu disclosed his name later on and knife was also recovered. It is also alleged in the complaint that accused was produced in the police station. It is further alleged that complainant also obtained treatment regarding injuries at Trauma Center and he had called at 100 number from the hospital itself and he was discharged from the hospital.
25.2 It is further alleged in the complaint that after discharge from the hospital, he went to the police station and lodged the complaint. It is also alleged that he could identify the other boy who was involved in the incident.
25.3 The victim Harsh has appeared in the witness box and he was examined as PW1. During his examination in the Court, he narrated the incident dated 02.09.2019 and deposed that he was waiting for auto and as the auto was not available, he started walking and when he crossed the Petrol Pump through the footpath of the road, suddenly one boy caught his hand and put the knife on his neck. He further deposed that boy had asked the witness that witness had picked up his pocket and he insisted to the witness to hand over his mobile and everything to him. He identified the said boy as accused Jamshed in the Court. He deposed that another boy came there and removed his spectacles, State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 31 RAVINDRA Digitally signed by RAVINDRA KUMAR KUMAR PANDEY Date: 2024.08.28 PANDEY 15:07:08 +0530 wired head phone and removed Rs. 12,500/- from his pocket. He deposed that scuffle took place and accused Jamshed had tried to cause injury by the knife to the witness but witness caught his hand due to which witness sustained injuries in his right thumb.
He deposed that he pulled them. He deposed that one uncle came on his scooty and he stopped and came towards the witness. He deposed that the person who had snatched his money had run away by jumping the wall of the forest.
25.4 He deposed that the accused Jamshed was apprehended with the help of that person who was a CRPF official. He deposed that accused was brought up to the PS Ambedkar Nagar where he was enquired and witness gave his statement as Ex. PW1/A. He deposed that the knife which was used by the accused Jamshed was also brought by the witness to the police station and same was handed over to the police which was seized by the police. He deposed that accused was arrested by the police.
He deposed that on interrogation, accused Jamshed disclosed the name of his associate as Asif, a resident of Sangam Vihar area. He deposed that he was not called by the police for identifying the accused Asif nor the accused Asif was arrested in his presence. He deposed that he got himself examined medically at AIIMS Trauma Center and his MLC was prepared. He deposed that he could not identify the accused Asif due to lapse of time.
25.5 During cross examination on behalf of the accused persons, it came on record that he was not informed by police at any point of time regarding the apprehension of accused Asif, nor State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 32 Digitally signed RAVINDRA by RAVINDRA KUMAR KUMAR PANDEY Date: 2024.08.28 PANDEY 15:07:14 +0530 his money was recovered. He deposed that some public person had called to the police at 100 number and he did not call at 100 number to the police. He admitted that no police official came at the spot. He also admitted that he and his brother went to the hospital and no police official accompanied them to the AIIMS Hospital. He replied that about 10 to 15 persons gathered at the spot after the incident and he did not disclose the name of TSR driver who took the witness to the Police Station.
He admitted that he lifted the knife from the spot and gave it to the police in the police station. However, he did not mention the said fact in his complaint. He also admitted that his complaint was reduced into writing by his brother Amit. However, his brother Amit as well as the said CRPF official were not mentioned as witness. Witness also admitted that he never went again to the spot with the police in regard to the investigation of the present case.
25.6 The other prosecution witness Ct. Akhilesh/PW2 who had accompanied the IO SI Rajpal (expired during the trial) deposed that he alongwith IO and complainant as well as accused Jamshed went to the spot and IO had prepared the site plan at the instance of complainant and at the spot itself IO had prepared the sketch of the recovered knife and IO seized the knife and prepared memo.
25.7 PW2 also claimed that accused Jamshed was arrested at the spot and arrest memo was prepared at the spot.
25.8 As per the seizure memo of the knife Ex. PW1/C, said knife was recovered from the possession of the accused Jamshed, contrary to the version of PW1 who claimed that he State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 33 Digitally signed by RAVINDRA RAVINDRA KUMAR KUMAR PANDEY Date: 2024.08.28 PANDEY 15:07:21 +0530 took the knife from the spot and handed over the same to the police in the police station. The seizure memo Ex. PW1/C also find mentioned the signature of victim/complainant and signature of the witness Ct. Akhilesh. However, as per the deposition of PW1, he never went to the spot after the incident, contrary to the version of witness Ct. Akhilesh/PW2 who claimed that the said knife was recovered at the instance of the accused and the sketch of the knife Ex. PW1/B as well as the seizure memo Ex. PW1/C were prepared at the spot.
25.9 It came on record during cross examination of PW2 Ct. Akhilesh who claimed to accompanied the IO to the spot with the victim and accused that knife was recovered at the instance of the accused and arrest of the accused was effected and document of the arrest were prepared at the spot. However, the victim/PW1 himself deposed that he never went to the spot with the IO or any other police official or with the accused again after the incident.
It also came on record during the cross examination of PW1 that police did not came at the spot when the information was given to the police at 100 number by some public person and he himself went to the police station alongwith the accused and one public person through TSR. The said public person and TSR driver was never inquired or associated in the investigation and no evidence came on record during the trial regarding their alleged presence with the victim.
25.10 It also came on record during the cross examination of PW1 that his complaint was reduced into writing by his brother after his medical examination. However, the brother of the victim was never associated in the investigation of the case and no explanation in that regard was offered by the prosecution. State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 34 RAVINDRA Digitally RAVINDRA signed by KUMAR KUMAR PANDEY Date: 2024.08.28 PANDEY 15:07:27 +0530 The complaint Ex. PW1/A of the complainant find mentioned that firstly the victim took the accused to the police station and he also took with himself the knife allegedly used by the accused against him in the police station and he handed over the accused as well as knife to the police and thereafter, he went to the hospital for his medical examination and from there he called at 100 number and after treatment he was discharged and he went to the police station and lodged his complaint.
However, during his examination in the Court, PW1 claimed that his statement was recorded in the police station prior to his medical examination in the hospital.
25.11 The prosecution has failed to bring any corroborating evidence against accused Jamshed @ Monu that knife was used by him against the victim or he alongwith his unknown associate had robbed the victim on the date of incident. The prosecution has also failed to bring any corroborating evidence and circumstantial evidence or last seen evidence to establish the fact that after the incident, the accused Jamshed @ Monu was apprehended by the victim or victim produced the accused Jamshed @ Monu in the police station Ambedkar Nagar alongwith the knife allegedly used by the accused against the victim.
The arrest of the accused Jamshed @ Monu and document regarding the arrest of the accused allegedly claimed to be prepared at the spot is also doubtful in view of the contradictory version of the victim/ PW1 and Ct. Akhilesh/PW2. The recovery of the knife at the place of incident and at the instance of the accused Jamshed @ Monu is also doubtful as State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 35 Digitally signed by RAVINDRA RAVINDRA KUMAR KUMAR PANDEY Date:
PANDEY 2024.08.28
15:07:33 +0530
claimed by PW2 Ct. Akhilesh which is contrary to the version of PW1/victim who specifically stated that he never went to the spot alongwith the police or accused again after the incident.
25.12 The prosecution has also failed to bring any direct or indirect evidence against the accused Asif @ Ashu and victim himself not identified the accused Asif @ Ashu during his examination in the Court and initially, no judicial TIP of the accused Asif @ Ashu was conducted.
26. In view of the above discussion, the Court is of the considered view that case of prosecution against the accused Jamshed @ Monu and Asif @ Ashu is not proved beyond reasonable doubt in regard to the charge punishable U/s 394/34 IPC and in regard to the charge of offence punishable U/s 397 IPC against the accused Jamshed @ Monu.
27. Accordingly, accused Jamshed @ Monu and Asif @ Ashu are acquitted from the charge of offence punishable U/s 394/34 IPC. Accused Jamshed @ Monu is also acquitted from the charge of offence punishable U/s 397 IPC.
28. Both the accused persons are directed to furnish Bail Bonds and Surety Bonds in terms of section 481 of BNSS, 2023 for sum of Rs. 10,000/- each.
29. Bail bonds/surety bonds furnished. The same are accepted.
30. File be consigned to Record Room after due RAVINDRA Digitally signed by compliance. KUMAR RAVINDRA KUMAR PANDEY Date: 2024.08.28 PANDEY 15:07:42 +0530 Announced in the open Court, (Ravindra Kumar Pandey) On 28.08.2024. ASJ:03/South/Saket Courts New Delhi State v. Jamshed @ Monu & Anr. FIR No. 416/2019, PS Ambedkar Nagar page no. 36