Delhi District Court
State vs . Mohd. Shahzad @ Akil on 13 October, 2022
IN THE COURT OF MS. MEENA CHAHAN
METROPOLITAN MAGISTRATE -08 (CENTRAL)
TIS HAZARI COURTS : DELHI
FIR No. : 76/2016
PS : Kamla Market
U/s 392/394/34 Indian Penal Code
State vs. Mohd. Shahzad @ Akil
Date of Institution of case: 27.05.2016
Date when Judgment reserved: 05.09.2022
Date on which Judgment pronounced: 13.10.2022
JUDGMENT
A. Case No. : 295724/2016
B. Date of Institution of Case : 27.05.2016
C. Date of Commission of Offence : 11.03.2016
D. Name of the complainant : Ashish Sahni s/o Ram Naresh
E. Name of the Accused & his address : Mohd. Shahzad @ Akil s/o Chand
Mohommad r/o H.No. 2196 Gali
Kalyan Pura, Turkman Gate, Delhi.
F. Offence complained of :U/s 392/394/34 Indian PenalCode
G. Plea of the Accused : Pleaded not guilty
H. Final order : Acquittal
I. Date of such order : 13.10.2022
BRIEF FACTS OF THE CASE:
State Vs. Mohd. Shahzad @ Akil
FIR No. 76/16
PS Kamla Market
1/22
1. Phithly put, the case of the prosecution is that on 11.03.2016 at about 4.30 pm in the running bus of route no. 753, near Ajmeri Gate Chowk, Kamla Market, Delhi, you along with your associate Deepka @ Vicky (not arrested) robbed the complainant Ashish Sahni of his purse containing cash of Rs.5,000/-, Aadhar card, identity card and visiting cards and while committing robbery, you voluntarily caused hurt by hitting upon the complainant with a blade thereby leading to the registration of present FIR u/s 392/394/34 of Indian Penal Code, 1860 (hereinafter called as IPC).
2. After the usual investigation, the charge sheet for the offence u/s 392/394/34 IPC was prepared against the accused. The aforementioned charge sheet was filed before the court on 27.05.2016 whereupon the cognizance of the offences mentioned in the chargesheet was taken against the accused. The copy of the charge-sheet was supplied to the accused in compliance of Section 207 of The Code of Criminal Procedure, 1973(hereinafter called as Cr.P.C). After hearing the arguments, charge u/s 392/394/34 IPC was framed against the accused on 09.06.2016 for the alleged commission of the offences u/s 392/394/34 IPC to which accused pleaded "Not Guilty" and instead claimed trial.
3. In support of its version, the prosecution has examined 05 (five) witnesses.
PW-1 Manoj Sahni in his examination-in-chief has deposed that on 11.03.2016, he was residing at Naraina, Delhi. On that day, he alongwith his friend Ashish Sahani were going towards New Delhi Railway Station for going to their village in a bus route no.753. At about 4.30 pm, they were getting down from the said bus. He has correctly identified the accused. The accused took out the purse of his State Vs. Mohd. Shahzad @ Akil FIR No. 76/16 PS Kamla Market 2/22 friend Ashish from his backside pocket of his trousers. The said purse contained three currency notes of Rs.1000/- each, four currency notes of Rs.500/- each, one Aadhar card. There was one more person along with the accused. The accused handed over the said purse to his accomplice and he saw this fact and informed his friend Ashish. He along with his friend tried to apprehend the accused and his accomplice. The accused was apprehended by his friend Ashish. He along with his friend had caught hold of the accused and they repeatedly asked him to give back their money. His friend Ashish caught hold of the accused from the neck of the accused and the accused took out a blade and hit Ashish with the blade on his hand. Blood started oozing out from the hand of Ashish. Public persons were also present there and someone from the public called on 100 numbers. Police arrived at the spot and took them to the police station. IO seized the bus tickets vide seizure memo Ex.PW1/A. IO also seized blade vide memo Ex.PW1/B. IO also prepared a sketch of the said blade Ex.PW1/C. IO arrested and personally searched the accused vide memos Ex.PW1/D and Ex.PW1/E respectively. He has correctly identified original bus tickets Ex.P1. DD No. 19A dated 11.03.2016, PS Kamla Market Ex.PW1/F on which the said tickets pasted. He has also correctly identified blade Ex.P2.
During cross-examination of the witness by Ld. LAC counsel, PW-1 stated that he studied till 7th standard. He first visited Delhi in 2004 and has been working since then. He does not remember the registration number and color of the bus in which they were traveling to New Delhi Railway Station. They both were sitting on the seat of the bus near its back side. He cannot tell the number mentioned on the State Vs. Mohd. Shahzad @ Akil FIR No. 76/16 PS Kamla Market 3/22 currency notes. Bus tickets were purchased by Ashish. He does not remember the number of the bus tickets. He saw the accused while he was removing the purse from the pocket of his friend Ashish. He informed Ashish about the same and the accused started running away. The purse was of black color and was of leather type. No writing work was done by the police at the spot where they apprehend the accused. He admitted that he signed the documents at the PS. He denied that he put his signatures on blank papers. He along with police officials went to the spot again from the PS for the purpose of collecting the blade used by the accused. When the accused was taken to the police station he was not having the blade in his possession (Vol. The blade fell down at the spot). He does not know the name of the train by which they were supposed to travel to their native place (Vol. The tickets were to be bought only after reaching the Railway Station). He denied that he is deposing falsely.
4. PW-2 Ashish Sahni in his examination-in-chief deposed that on 11.03.2016, he along with his friend Manoj Sahni was going towards New Delhi Railway Station for going to their village in a bus route no.753. At about 4.30 pm, they were getting down from the said bus, his friend Manoj told him that the accused took out his lack coloured purse from the backside pocket of his trousers. He correctly identified the accused. The said purse contained three currency notes of Rs.1000/- each, four currency notes of Rs.500/- each, one Aadhar card, one gate pass of the company, his voter ID card, etc. He along with his friend Manoj apprehended the accused. There was one more accomplice who ran away from the spot with his purse. He caught hold of the accused from his neck and hit on his hand with a State Vs. Mohd. Shahzad @ Akil FIR No. 76/16 PS Kamla Market 4/22 blade which was in the hand of the accused due to which, he received injuries and blood oozing out from his hand. He took the blade out from the hand of the accused and the blade fell down on the ground. He along with his friend asked the accused to give him back his purse, however, the accused did not give them back his purse. Someone from the public called on 100 numbers. Police arrived at the spot and took them to the PS. Police recorded his statement Ex.PW2/A. IO seized the bus tickets, the seizure memo Ex.PW1/A. IO also seized the blade vide memo Ex.PW1/B. IO also prepared a sketch of the said blade Ex.PW1/C. IO arrested and personally searched the accused vide memos Ex.PW1/D and Ex.PW1/E respectively. He has correctly identified original bus tickets Ex.P1. DD No. 19A dated 11.03.2016, PS Kamla Market Ex.PW1/F on which the said tickets pasted.
During cross-examination of the witness by Ld. LAC counsel, PW-2 stated that he left his house at about 3.30 PM to get the bus to go to the Railway Station. He had to go to Allahabad with his brother who was studying there and thereafter they both went to their native village at Bihar. His friend Manoj is from Nanihal. He studied till 8th standard. He first visited Delhi in 2004. He does not remember the registration number of the bus in which they were traveling to New Delhi Railway Station. He had purchased the bus ticket of Rs. 20 each. He does not remember the number of the bus tickets. The accused was pushing me from behind and when he got down from the bus his friend told him that his purse was taken out by the accused. The bus reached New Delhi Railway Station at 4.00- 4.30 PM. He apprehended the accused first, thereafter, his friend also later came and caught hold of the accused. Public person made a call on a 100 number from his mobile State Vs. Mohd. Shahzad @ Akil FIR No. 76/16 PS Kamla Market 5/22 phone. Police arrived at the spot before 5.00 PM. It was raining at the spot and he signed the documents at the PS. The police officials left them at our place of work at about 12.00 midnight. He denied that he put his signatures on blank papers. He removed the blade from the hand of the accused which was thrown at the spot. He further denied that no such incident had occurred and that he is deposing falsely.
5. PW-3 HC Mahavir has deposed in his examination-in-chief that on 11.03.2016, he was posted at PS Kamla Market as Constable. On that day, HC P.R. Patnaik received DD entry no.19A. After receiving the DD entry, he joined the investigation along with HC P.R.Patnaik and reached at Ajmeri Gate, near New Delhi Railway Station and met with complainant Ashish Shahni and his friend Manoj Shahni who had apprehended the accused. PW-3 correctly identified the accused. Complainant handed over the accused along with one blade to IO. IO inquired about the incident from the complainant. Thereafter, the complainant got medically examined through him. He along with the complainant returned at the spot. IO recorded the statement of the complainant and prepared rukka. Same was handed over to him for registration of the FIR. IO sealed the blade after putting the same in a plastic box and sealed with the seal of PRP. After using the seal, the same was handed over to him. IO seized the same vide memo Ex.PW1/B. IO also prepared the sketch of the blade vide memo Ex. PW1/C. After registration of FIR, investigation was handed over to SI Mangej. He along with IO SI Mangej reached the spot. First IO HC P.R.Patnaik handed over the custody of the accused and case property to the IO SI Mangej. Thereafter, IO arrested and searched accused vide memos Ex.PW1/D and Ex. PW1/E. IO recorded the disclosure statement of the State Vs. Mohd. Shahzad @ Akil FIR No. 76/16 PS Kamla Market 6/22 accused vide memo Ex.PW3/C. Thereafter, they returned to the PS alongwith accused persons. Accused got medically examined through Ct. Deepak and put behind the bars. IO recorded his statement. He has correctly identified one stainless steel blade make platinum Ex.P-2.
During cross-examination of the witness by Ld. LAC counsel, PW-3 stated that public persons were passing through the spot. IO had asked public persons to join the proceedings but none joined and went away without disclosing their names and addresses. Food rehris were present on the spot. IO asked them to join the proceedings but none joined. They also did not disclose their names and addresses. IO did not send the case property to FSL in his presence. He does not remember whether any blood stains were present on the blade. Blade similar to the blade found in possession of the accused is easily available in the market. He denied that IO had planted the case property upon the accused in order to implicate the accused in the present case. It is not mentioned on the thumb impression present on Ex.PW1/B whether it is left thumb impression or right thumb impression and no indication is mentioned to whom it belongs. It is also not mentioned on the thumb impression on Ex.PW1/C whether it is left thumb impression or right thumb impression and no indication is mentioned to whom it belongs. His statement was recorded in PS. He further denied that no such incident had ever taken place. He further denied that no quarrel and robbery had taken place. He further denied that all the proceedings were carried out while sitting at PS. He further denied that the accused had been falsely implicated in the present case due to previous involvement in criminal cases. He further denied that State Vs. Mohd. Shahzad @ Akil FIR No. 76/16 PS Kamla Market 7/22 he is deposing falsely.
6. PW-4 ASI P R Patnayak in his examination-in-chief deposed that on 11.03.2016, he was posted as PS Kamla Market as a HC. On that day, he was on emergency duty alongwith Ct. Mahavir and he had received DD No. 19A after receiving the same, he alongwith Ct. Mahavir reached at the spot i.e., JLN Marg, bus stand near Ajmeri Gate where he met with two persons namely complainant Ashish Sahney and his friend Manoj Sahney who handed over to him one persons along with one saving blade and told that person had caused injury to complainant with the blade and taken out his purse containing Rs. 5000/-, I-card of Construction company in which complainant was working, and some visiting cards and handed over same to his co-associate namely Deepak who had went from the spot along with the purse of the complainant. Complainant also handed over to him two DTC bus tickets (Twenty rupees each). Thereafter, he sent the complainant to the hospital alongwith Ct. Mahavir for his medical examination. After medical examination, the complainant returned at the spot and he recorded his statement vide Ex. PW-2/A. He prepared the rukka vide Ex. PW-4/A. Thereafter, he prepared the pullanda and kept the blade inside it and sealed it with the seal of "PRP". After using the seal the same is handed over to Ct. Mahavir. He seized the bus tickets after affixing the same on white paper vide seizure memo Ex. PW-1/A. The said tickets are Ex.P-1 (colly). Thereafter, he seized the pullanda vide seizure memo Ex.PW-1/B. He prepared the sketch of the blade vide Ex. PW-1/C. The rukka was handed over to Ct. Mahavir for registration of FIR. After registration of FIR, he returned at the spot along with SI Mangesh. He handed over the case property and State Vs. Mohd. Shahzad @ Akil FIR No. 76/16 PS Kamla Market 8/22 accused to second IO SI Mangesh who carried out further investigation. IO recorded his statement. PW-4 correctly identified the accused. He has correctly identified one blade.
During cross-examination of the witness by the witness Ld. LAC for the accused, PW-4 stated that he left the PS for the spot at about 03:40 p.m by foot. The distance between the spot and the PS was about 500 meter. They reached the spot within 10 minutes. The spot was a crowded area. Public persons were present at the spot. He asked public persons to join the proceedings but none joined and went away without disclosing their names and addresses. No notice was served upon them. Complainant was sent to the hospital at about 04:15 p.m., and he returned at the spot at about 05:30 p.m. He prepared rukka at about 07:40 p.m., and the same was sent to the PS immediately. He remained at the spot for about 03:30 hours. He does not remember whether IO SI Mangesh had asked public persons to join the proceedings or not. He does not know whether any notice was served upon the public persons by IO SI Mangesh or not. He did not prepare any handing over memo of the seal which he handed over to the Ct. Mahavir. The seal was handed over to him on the next day. He did not take over the memo of the seal. Case property was handed over to him by the complainant and the same was not found in the possession of accused persons. He denied that no such incident had ever taken place. He further denied that the case property was not recovered from the possession of the accused. He further denied that all the proceedings were carried out while sitting in the PS. He further denied that he is deposing falsely.
State Vs. Mohd. Shahzad @ Akil FIR No. 76/16 PS Kamla Market 9/22
7. PW-5 Retired SI Mangej in his examination-in-chief deposed that on 16.03.2016, he was posted at PS Kamla Market as SI. On that day, he received the copy of FIR and the rukka through Ct. Mahavir. After receiving the same, he alongwith Ct. Mahavir reached the spot i.e., bus stand near Ajmeri Gate where he met with HC P.R. Patnayak who handed over to him documents and case property which was sealed with the seal of "PRP" and the accused Shehjaad @ Akil. He also handed over to him the MLC of the complainant / victim. He interrogated the accused and arrested vide arrest memo Ex. PW-1/D. He also prepared a personal search memo of accused vide Ex. PW-1/E. Disclosure statement of accused was also recorded vide Ex. PW-3/A. Thereafter, the accused was medically examined and put behind the bar. On the next day, the accused was produced before the Court and one day PC was obtained in order to such co-associates of the accused. Thereafter, he along with the accused visited Shivaji Park and New Delhi Railway Station Area in search of a co-associate but he could not be traced. Thereafter, the accused got medically examined and next day he was produced before the Court from where he was sent to the JC. The victim / complainant was called in the hospital by the concerned doctors but he did not appear. During the course of investigation, he recorded the statement of the witnesses. After completion of the investigation, he prepared a chargesheet and submitted the same before the Court. PW-5 correctly identified the accused. He has also correctly identified case property i.e., bus ticket and blade Ex. P-1 & Ex.P-2.
During cross-examination of the witness by the witness Ld. LAC for the accused, PW-5 stated that he left the PS for the spot at about 08:45 p.m on motorcycle. The State Vs. Mohd. Shahzad @ Akil FIR No. 76/16 PS Kamla Market 10/22 distance between the spot and the PS was about 600 meter. They reached the spot within 05 minutes. The spot was a crowded area. Public persons were present at the spot. He asked public persons to join the proceedings but none joined and went away without disclosing their names and addresses. No notice was served upon them. He remained at the spot for about 1 hour. He did not make any separate entry before his departure from the PS. The case property was already sealed when the same was handed over to him. He reached PS at about 11: p.m. He denied that no such incident had ever taken place. He further denied that the case property was not recovered from the possession of the accused. He further denied that all the proceedings were carried out while sitting in the PS. He further denied that he is deposing falsely.
8. Vide separate statement under section 294 Cr.P.C., the accused admitted the documents which are an FIR Ex. A-1, endorsement Ex.A-2, the certificate u/s 65-B Indian Evidence Act Ex. A-3 and DD No. 19A dated 11.03.2016 Ex. A-4, MLC No. ED0008871 Ex.A-5 without admitting the contents of the same. No other prosecution witness as per the list of witnesses in the charge sheet was left to be examined, and hence, PE was closed vide order dated 16.03.2020 of Ld. Predecessor of this Court.
9. Statement of the accused was recorded U/s 313 Cr.P.C on 28.03.2022 wherein all the incriminating circumstances appearing in evidence against him were put to him, to which he pleaded innocence, and stated that he has been falsely implicated in the present matter. Accused opted not to lead defence evidence. Final arguments were heard at length.
State Vs. Mohd. Shahzad @ Akil FIR No. 76/16 PS Kamla Market 11/22 POINTS FOR DETERMINATION:
(i) Whether the complainant was present at the spot of occurrence at the relevant point of time?
(ii) Whether the accused intending to take dishonestly the purse of the complainant out of the possession of the complainant without his consent, moved it in order to such taking, and thereby committed an offence punishable u/s 379 IPC?
(iii) Whether the complainant was put in fear of instant death, hurt or wrongful restraint, while commission or attempt at commission of robbery?
(iv) Whether the complainant was actually voluntarily caused hurt in commission, or attempt at commission of robbery?
(v) Whether the accused was present at the spot of occurrence, and no person other than the accused could possibly have committed the offence?
DISCUSSION, DECISION AND REASONS THEREON:
10. I have heard the arguments addressed by the Ld. APP for state and the Ld. LAC for the accused and carefully perused the documents on record. Before adverting to the appreciation of evidence for deciding the present case, the applicable penal provisions are reproduced in verbatim as follow:-
Section 378. Theft.--Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
390. Robbery.--In all robbery, there is either theft or extortion.
When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away State Vs. Mohd. Shahzad @ Akil FIR No. 76/16 PS Kamla Market 12/22 property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause, to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear, then and there to deliver up the thing extorted.
Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
392. Punishment for robbery.--Whoever commits robbery, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
394. 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 with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Section 34 of Indian Penal Code states that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. Thus, this provision stresses upon the existence of common intention as well as participation of each accused by committing a 'criminal act', not necessarily in itself amounting to an offence. Common intention may be proved by conduct, as it can be formed in the course of occurrence itself, and there is no need to specifically prove a pre- meditation or prior conspiracy [Abdulla Kumhi Vs. State of Kerala, AIR 1991 SC 452, Hari Om Vs. State of U.P. (1993) 1 Crimes 294 (SC)].
State Vs. Mohd. Shahzad @ Akil FIR No. 76/16 PS Kamla Market 13/22
11. In Braham Singh vs State (NCT of Delhi), Crl. A. no. 28/2008, decided on 23/11/2009, has discussed the distinction between theft and robbery. It has held as under:
"14. The line of distinction between "robbery" as defined under Section 390 of the IPC and "theft" as defined in Section 378 of the IPC is thin but nevertheless distinct. Theft becomes robbery if in the process of committing the theft the offender causes or attempts to cause either death or hurt or a wrongful restraint....
15. Section 390 of the IPC in fact contemplates that the accused should have from the very start the intention to deprive the complainant of the property and should for that purpose either hurt him or place him under wrongful restraint. Where A and B were stealing mangoes from a tree, C surprised them, on which A knocked him down senseless with a stick; where a person, in snatching a nose−ring, wounded the woman in the nostril and caused her blood to flow, this offence was committed. Where the accused slapped the victim after dispossessing him of his watch in order to silence him an offence under Section 390 was made out. These are instances of robbery for which the accused stood convicted. See Husrut Sheikh (1866) 5 WR (Cr) 85, Teekai Bheer (1866) 5 WR (Cr) 95 and Harish Chandra AIR 1976 SC 1430."
12. (i) Whether the complainant was present at the spot of occurrence at the relevant point of time?
It is the prosecution case that the complainant was traveling along with his friend Manoj Sahni at a relevant point of time from bus bearing route no. 753 which was going towards New Delhi Railway Station. PW-2 Ashish Sahni who is the complainant and his friend PW-1 Manoj Sahni who is an eye-witness have proved the seizure memo of bus tickets i.e. Ex. PW1/A having their signature at point B and point A respectively which is reportedly seized at the same date of incident State Vs. Mohd. Shahzad @ Akil FIR No. 76/16 PS Kamla Market 14/22 soon after the commission of alleged offences. Even IO/PW-4 ASI P.R. Patnayak and PW-3 HC Mahavir also deposed on the same lines and IO has further corroborated this seizure memo of bus tickets in question. PW-2 and PW-1 have also correctly identified these seized bus tickets in their evidence as Ex. P1(colly). Even the IO/PW-4 ASI P.R. Patnayak and PW-3 HC Mahavir specifically stated that when they reached the spot they found the complainant along with his friend. Despite cross-examination of the complainant and the eye-witness by defence, they remained at their stance and their evidence stood uncontradicted in this regard. Therefore, the presence of the complainant at the spot of occurrence at the time of commission of offence is established by the prosecution evidence.
13. Points no. (ii) Whether the accused intending to take dishonestly the purse of the complainant out of the possession of the complainant without his consent, moved it in order to such taking, and thereby committed an offence punishable u/s 379 IPC? (iii) Whether the complainant was put in fear of instant death, hurt or wrongful restraint, while commission or attempt at commission of robbery? and (iv) Whether the complainant was actually voluntarily caused hurt in commission or attempt at commission of robbery? are being discussed together.
After scanning the prosecution evidence in whole, I would like to make the following observations:
14. The place of occurrence not established : The initial complaint is placed on record which is Ex. PW1/B, wherein the chronology of events is stated as when complainant and his friend went to the gate of bus to get down, in the running bus State Vs. Mohd. Shahzad @ Akil FIR No. 76/16 PS Kamla Market 15/22 itself, Manoj, friend of complainant apprised him that his purse was being taken by the accused and given to his accomplice, on which he checked his pocket and purse was not there. Thereafter, they tried to catch the accused, who started scuffling with them and the bus stand came. As soon as the bus stopped, the accused gave the purse to the accomplice and the complainant and Manoj apprehended the accused, who hit the complainant with a blade on his left hand, then the bus stopped. It is further stated that as soon as the bus stopped, the accomplice ran away with the robbed purse from the spot, however they apprehended the accused with a blade. When this version is looked upon in the light of testimony given by the PW-2 before the court, it appears that there is glaring inconsistencies as the complainant has initially stated that the incident started when they were getting down from the bus, but when the bus stopped or when they get down from the bus is nowhere stated specifically. PW-1 deposed that one accomplice ran away from the spot, but it is mentioned whether at that time they were in the running bus or the bus had stopped. Further, it is stated that he himself took a blade from the accused and that fell down on the ground, so believing the story of prosecution, if an offence was committed in the running bus, whether this blade fell down at the floor of the bus or on the ground when they got down is open to speculation. As per the first complaint when the bus stopped then the hurt was caused to the complainant after getting down from the bus and as per the case of prosecution, the alleged offence has been committed in the running bus. However, even after careful perusal of testimonies of PW-2 and PW-1, it cannot be said with certainty that where the theft was committed, from where and when the accomplice ran away with the property of the complainant and where the hurt was caused to the State Vs. Mohd. Shahzad @ Akil FIR No. 76/16 PS Kamla Market 16/22 complainant. To the surprise of the court, it was found that though the chargesheet mentioned that the site plan was prepared at the instance of the complainant, however neither of the prosecution witnesses whispered a single word about site plan nor there is any site plan on record. Suffice it to say that if a proper site has surfaced before the court, it would enable the court to properly appreciate the facts of this and that might answer the loopholes left in the prosecution story. Overall, the prosecution case doesn't establish the place of occurrence of offences beyond the shadows of doubt.
15. Ambiguities with respect to PCR caller: The first reported complaint of the complainant mentioned that some public person had called 100 numbers and police came at the spot. Both the PW-2 and PW-1 deposed on the same lines. However, it is during the cross-examination of PW-2 that it was found that some public person made a call from the mobile phone of the complainant only. It is quite strange that the complainant forgot this fact and never mentioned it neither in his complaint nor in his testimony before the court. Further, it remained unanswered as to why that public caller was not traced and not made part of investigation proceedings.
16. Seizure and seal of weapon of offence i.e. blade: Firstly, as per two important documents rukka and tehrir i.e. Ex. PW-2/A and Ex. PW-4/A respectively, when the IO reached the spot, the complainant had handed over the accused along with a blade to the IO. Thereafter, IO prepared a sketch of the same, a seizure memo and sealed it in one plastic box with the seal of PRP and the seal was handed over to Ct. Mahavir after use. It is only thereafter the rukka was sent for registration of FIR and the present FIR got registered. Ocular testimonies of all prosecution witnesses also supported the case of prosecution in this regard.
State Vs. Mohd. Shahzad @ Akil FIR No. 76/16 PS Kamla Market 17/22 However, perusal of sketch memo i.e. Ex. PW-1/B and a seizure memo Ex. PW- 1/C shows that there is an FIR number written on the top of these documents. At the time of the seizure, the FIR number was not available as per prosecution story and therefore, the FIR number could not have been figured on the seizure memo or the sketch. The existence of the FIR number on these documents suggests that the seizure memo and sketch memo were both prepared after the registration of the FIR. In view of the above discussion, it is not clear whether FIR was registered before all paperwork related to the weapon of offence was done or after. This erodes the credibility of the witnesses who have stated that the seizure memo was prepared on the spot and before the registration of FIR and the possibility of tampering cannot be ruled out. Secondly, the seal was handed over to PW-3 after use.. Same statement has been recorded in tehrir. Admittedly, no handing over memo was prepared as IO/PW-4 who clearly stated that no seal handing over memo was ever prepared and in fact seal was returned back to him the very next day. The seal was handed over to the material prosecution witness, who is already interested in the case of the prosecution and neither handed over to an independent witness nor deposited in Malkhana. Also, the court cannot lose sight of the fact that these kinds of blades are easily available in the market as suggested by defence during cross-examination of PW-3. In this scenario, the possibility of tampering with a weapon of offence and even the possibility of planting the weapon cannot be ruled out.
17. Place of documentary proceedings: The star witness of the prosecution PW- 2 stated during his cross-examination that it was raining at the spot and he signed all the documents at the PS only. PW-1 Manoj also stated during his cross-
State Vs. Mohd. Shahzad @ Akil FIR No. 76/16 PS Kamla Market 18/22 examination that no writing was done by the police at the post where they apprehended the accused and he admitted that he signed the documents at the PS. He further stated that he along with police officials went to the spot again from the PS for the purpose of collecting the blade used by the accused as when the accused was taken to PS he was not having the blade in his possession. He voluntarily stated that the blade fell down at the spot. Now, these last two statements completely puzzled the case of prosecution as when the balde was seized and sealed soon after the incident when police came at the spot, why the eye-witness is giving a completely new angle to this story of prosecution. Further, all the police witnesses nowhere mentioned that all the documentary proceedings were being conducted at the PS itself. Moreover, how and where the first complaint was written and rukka/tehrir was prepared, and why it was sent to PS for registration of FIR when all the paper work was done at PS only. And so many more questions like these remained unanswered through the trial proceedings. These questions raised some serious doubts in the version of prosecution and put all the documentary evidence on record in the shadow of doubt, which fumbled up the case of prosecution at once.
18. No public witness joined despite the availability: All police witnesses admitted in their testimonies that the place of occurrence was a crowded place and many food rehris were also present there at the relevant time. Even IO/PW-4 admitted the availability of public witnesses, however, neither they were joined in the investigation nor any notices were being given to those who refused to take part in the investigation. It is pertinent to observe here that it was broad day-light and the bus stopped at the bus stand where usually the crowd is seen, if not on State Vs. Mohd. Shahzad @ Akil FIR No. 76/16 PS Kamla Market 19/22 road, then the passengers were naturally getting up and down in the buses. The fact of not noting down the name or address of any witness in the diary, or giving notice to public persons who refused to be part of the investigation, casts doubt on the story of the prosecution that whether any serious efforts were made to join any public witness in the proceedings. It has been repeatedly observed in many landmark judgments of higher courts that non-joining of independent/public witnesses is fatal to the prosecution case and creates serious doubts regarding the genuineness of investigation proceedings done at the spot when there is all the opportunity and availability of public witnesses at the spot.
19. Thus, the prosecution story appears to be based upon coincidence, which does not appear to be a coincidence, and 'evidence', which does not have the probative value of an evidence. The prosecution story does not align at all with the common course of natural events, human conduct and public and private business, and therefore this court presumes u/s 114 of the Indian Evidence Act that such offence has not been committed by the accused and there is nothing in the prosecution evidence to rebut this presumption. Accordingly, the prosecution has miserably failed to prove its case beyond reasonable doubts.
20. In summation of these observations, it can be said that these loopholes, inconsistencies and contradictions of versions of prosecution witnesses, improbabilises its truthfulness but probabilises the version and defence of accused in this case. Therefore, the prosecution has failed to establish charge u/s 392/394/34 IPC.
21. Point: (v) Whether the accused was present at the spot of occurrence, and no person other than the accused could possibly have committed the State Vs. Mohd. Shahzad @ Akil FIR No. 76/16 PS Kamla Market 20/22 offence? As the prosecution case is not able to prove the commission of offence itself, delving into this point is an unnecessary exercise, which I would refrain myself from doing at this stage.
CONCLUSION:
22. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
23. It has been held by the Hon'ble Supreme Court in a case titled as Ganga Singh Vs. State of Madhya Pradesh (2013) 7 SCC 278 that:
"The settled position of law is that the prosecution is required to establish the guilt of the accused beyond reasonable doubt by adducing evidence. Hence, if the prosecution in a given case adduces evidence to establish the guilt of the accused beyond reasonable doubt, the Court cannot acquit the accused on the ground that there are some defects in the investigation, but if the defects in the investigation are such as to cast a reasonable doubt in the prosecution case, then of course the accused is entitled to acquittal because of such doubt."
24. On careful perusal and analysis of the entire evidence, I find that there is no corroborative, consistent and sufficient evidence to make up the edifice of the prosecution case which has been produced by the prosecution. Given the aforementioned facts and circumstances, it has to be concluded that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Therefore, the Accused is given the benefit of doubt. Accordingly, the accused Mohd. Shahjad @ Akil s/o Chand Mohammad is hereby acquitted for an offence State Vs. Mohd. Shahzad @ Akil FIR No. 76/16 PS Kamla Market 21/22 punishable under Section 392/394/34 of Indian Penal Code, 1860.
File be consigned to Record Room subject to compliance of section 437-A Cr.PC.
Announced in the open court today i.e. 13.10.2022 MEENA Digitally signed by MEENA CHAUHAN CHAUHAN Date: 2022.10.13 15:12:15 +0530 (MEENA CHAUHAN) Metropolitan Magistrate-08 Central District, Tis Hazari Courts/Delhi
[This judgment contains 22 pages and each page bears the initials of undersigned and the last page bears the complete sign of undersigned.] State Vs. Mohd. Shahzad @ Akil FIR No. 76/16 PS Kamla Market 22/22