Delhi District Court
State vs 1 Sheikh Mofizul (A-1), on 2 September, 2015
IN THE COURT OF MANOJ JAIN: ADDL SESSIONS JUDGE
FAST TRACK COURT: NORTH-WEST DISTRICT: ROHINI
DELHI
Unique Identification No. 02404R0074112012
Sessions Case No. 81/1/13
FIR No. 243/2011
PS Adarsh Nagar
U/s 457/392/397/411/34 IPC
& u/s 27 Arms Act
State Versus 1 Sheikh Mofizul (A-1),
Son of Sh. Abdul Barik,
Resident of H. No. 186/B-7,
J.J. Colony, Bhalaswa Dairy,
Delhi.
2 Sheikh Shahdat (A-2),
Son of Sh. Sheikh Reku,
Resident of Jhuggi No. H-4/107,
Jahangir Puri, Delhi.
3 Fazer Ali @ Fojer (A-3),
Son of Sh. Khurseed,
Resident of Jhuggi No. H-4/213,
Shah Alam Bandh,
Jahangir Puri, Delhi
Date of institution in Sessions Court: 26.03.2012
Date of conclusion of arguments : 18.08.2015
Date of pronouncement of judgment: 02.09.2015
Memo of Appearance:
Sh. Sanjay Jindal, learned Addl. P.P. for State.
Sh Tufail and Sh. Anwar Ahmad Khan, learned counsels for A-1 & A-3.
Ms. Shivali Gautam, learned Amicus Curiae for A-2.
FIR No. 243/2011 PS Adarsh Nagar (State Vs. Sheikh Mofizul etc) Page 1 of 21
JUDGMENT
1 A charge-sheet was laid against A-1 & A-2 for commission of offences under Sections 457/392/397/411/34 IPC & under Section 27 Arms Act before the concerned Magisterial Court on 29.02.2012. It was also submitted therein that further investigation was underway and as and when there was any clue about the remaining two offenders, supplementary charge-sheet would be filed. A supplementary charge-sheet was also filed on 07.10.2014. It was directed against A-3 Fazer Ali @ Fojer. He was charge-sheeted under Sections 392/397/457/34 IPC. It was also mentioned therein that there was no clue regarding the alleged fourth offender i.e. Fokru.
2 Case of the prosecution, briefly stated, is to the effect that complainant Malti Dahiya used to reside at H. No. B-27, Sarai Extension, 3rd Floor, Adarsh Nagar, Delhi. Her daughter Neeraj with her children had come to meet her at said house and also chose to stay overnight. On the night intervening 17.09.2011 & 18.09.2011 at about 2.00 AM, Malti heard some movement and then noticed three persons (accused herein) inside her room. They all were armed with knives. One more accomplice of them had positioned himself at the door. All the three accused persons threatened her at knife point and asked her to remove all her wearing gold ornaments. Ms. Neeraj woke up and she was also asked to hand over all her wearing gold ornaments. They all thus robbed them. All the burglars, while leaving, also took away mobile phones of complainant and her daughter besides cash amount of Rs. 50,000/- from one almirah. They also bolted the house from outside. Malti was able to come out through a window and then unbolted the main door from outside and informed the neighbours and police as well about the robbery. She also disclosed that she could identify all those three persons who were in the age group of 20-22 years.
3 FIR was registered and investigation was carried out. On the basis of secret information dated 07.10.2011, A-1 was apprehended from the area of Adarsh Nagar and from his possession, one robbed mobile phone (make HTC) was recovered. It was, however, not containing any SIM. A-1 admitted his involvement in the present matter and also revealed names of his co-accused.
FIR No. 243/2011 PS Adarsh Nagar (State Vs. Sheikh Mofizul etc) Page 2 of 21Test Identification Parade of A-1 was got conducted on 15.10.2011 in which A-1 was duly identified. A-2 Sheikh Shahdat was apprehended on 01.12.2011 but he, same day, refused to participate in TIP. Despite police custody, police could not recover the other robbed articles i.e. jewellery, cash etc. Third accused i.e. Fazer Ali @ Fojer (A-3) was arrested on 09.09.2014. He was duly identified in TIP proceedings dated 22.09.2014.
4 Both the charge-sheets were eventually committed to the Court of Sessions as offence under Section 397 IPC was triable exclusively by the Court of Sessions.
5 As far as A-1 & A-2 are concerned, they both were charged for offences u/s 457/392/394/397/34 IPC. A-1 was also additionally charged u/s 411 IPC for being found in possession of stolen mobile phone. Such charges were framed on 03.04.2012. They pleaded not guilty and claimed trial. A-3 Fazer Ali @ Fojer was also charged u/s 457/392/394/397/34 IPC vide order dated 14.01.2015. He also pleaded not guilty and claimed trial.
6 Prosecution was directed to adduce evidence and has examined seventeen witnesses who can be categorized as under:-
Public witnesses
(i) PW1 Ms. Malti Dahiya (complainant/victim).
(ii) PW4 Ms. Neeraj Maan (eyewitness/victim).
(iii) PW6 Sh. Kush (witness who proved the purchase bill of mobile phone).
(iv) PW7 Sh. Sanjay Maan (husband of Ms. Neeraj Maan).
Police official
(i) PW2 SI Rajpal Rana (duty officer).
(ii) PW3 SI Matadin (Incharge Crime Team).
(iii) PW5 Ct. Dalbir Singh (photographer Crime Team).
(iv) PW8 Ct. Vivek (DD Writer).
(v) PW9 ASI Durga Parsad (first IO).
(vi) PW10 Ct. Kishan Kumar (police official who accompanied first IO).
(vii) PW11 Ms. Shefali Barnala Tandon (ld. MM who conducted TIP A-2).
(viii) PW12 Sh. Dheeraj Mor (ld. MM who conducted TIP of A-1).
(ix) PW13 Ct. Ravinder (IO).
(x) PW14 Ct. Gurdeep Singh (witness of arrest of A-2).
(xi) PW15 Insp. Arvind Pratap Singh (IO).
(xii) PW16 ASI Ram Avtar (IO).
(xiii) PW17 SI Praveen Kumar (IO)
FIR No. 243/2011 PS Adarsh Nagar (State Vs. Sheikh Mofizul etc) Page 3 of 21
7 All the accused, in their respective statements under Section 313
Cr.P.C., pleaded innocence and claimed that they had been falsely implicated.
They out-rightly denied their involvement in the present matter. They, however, did not desire to lead any evidence in defence.
8 I have heard learned Addl. P.P. and learned defence counsels and carefully perused the entire material available on record.
9 Sh. Jindal has contended that prosecution has been able to prove its case to the hilt. He has argued that both the material public witnesses have supported the case with respect to all the aspects and there is no reason to disbelieve or discard their testimony. He has argued that both of them have identified the accused persons and there is no reason whatsoever which may even remotely suggest any false implication. He has contended that all the other investigational aspects have also been duly proved and, therefore, all the accused should be held guilty for the offences with which they have been charged.
10 Sh. Tufail and Sh. Anwar Ahmad Khan, learned defence counsels for A-1 & A-3 have contended that accused are innocent and have been falsely implicated. Their primary grouse is with respect to the manner of identification. According to them, identification was got conducted belatedly and moreover both the accused had already been shown by the police to complainant and her daughter and in such a situation, even otherwise, test identification parade did not carry any substance. They have also claimed that complainants had never claimed that they could identify the alleged robbers and moreover the description about the physical distinctive features were not given and the complainants identified the accused persons merely on the basis of inputs given by the police who merely wanted to show that the case had been cracked. They have also claimed that there are material infirmities and inconsistencies between the testimony of both the public witnesses i.e. PW1 Malti Dahiya and PW4 Neeraj Maan. It has been claimed that investigation has not been conducted in the fair manner and moreover no neighbour or resident of nearby locality has been joined in the investigation. Written arguments have also been submitted by them.
FIR No. 243/2011 PS Adarsh Nagar (State Vs. Sheikh Mofizul etc) Page 4 of 2111 Ms. Shivali Gautam, learned Amicus Curiae for A-2 has also contended that A-2 has been falsely implicated in the present matter. It has been argued that since accused had already been shown to the complainant party, accused had every reason to refuse to participate in TIP.
12 I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record.
13 Let me straightway come to the testimony of complainant Malti Dahiya and her daughter Neeraj Maan. For all practical purposes, their testimony holds the key.
14 PW1 Malti Dahiya has deposed that on 17.11.2011 her daughter had come to meet them at about 9.30 PM. She along with her daughter bolted the door and went to sleep. Three children of her daughter were also sleeping there. At about 2.00 AM, she heard some noise and woke up and saw four boys inside her room. Out of them three boys came near to them and all such boys were having knives. She deposed that all those three boys showed her knife and also put the knives on the neck of her children and threatened to handover whatever gold articles they were wearing else they would be killed. She deposed that she was wearing four gold bangles, two tops, two rings and she removed the same and handed over the same to them. In the meanwhile, her daughter Neeraj Maan woke up and she was also threatened in the similar manner and she also had to remove her gold articles and to hand over the same to said robbers.
15 PW1 Malti further deposed that all those robbers took away her mobile of Reliance of MTS having number 9350274888 and having IMEI number A000002B5D55F5. They also took away mobile phone of her daughter which was of HTC Make. Such mobile number was 8802879760 having IMEI number as 355046016571972. She further deposed that all the accused also threatened that if any alarm was made by them then they would kill them. While leaving, they bolted the door from outside. Thereafter, she checked the almirah and found that cash amount of Rs. 50,000/- was also missing. She claimed that all the boys FIR No. 243/2011 PS Adarsh Nagar (State Vs. Sheikh Mofizul etc) Page 5 of 21 were in the age group of 20-25 years. She further deposed that she opened the window of the room and came outside and went to the upper floor and told her neighbour and thereafter police was informed and police reached at the spot and recorded her statement. She has proved her statement as Ex. PW1/A. She also claimed that crime team also reached at the spot and photographs of the spot were also taken. She also deposed that she noticed that iron mosquito net (jaali) of the gate had been cut by those accused persons and accused might have entered the house after cutting such net and then after opening the inner bolt from outside by pushing hand inside.
16 She also deposed that on 14.11.2011 she had gone to Rohini Jail and identified accused Sheikh Mofizul (A-1). She has also proved TIP proceedings as Ex. PW1/B. She deposed that on 01.12.2011also, she had gone to identify one such robber. She was, however, told that accused had refused to participate in TIP. She also identified both the aforesaid accused i.e. A-1 & A-2 during her testimony recorded on 11.05.2012. She also deposed that she had handed over to police the original bill regarding purchase of her mobile phone. Such bill has been proved as Ex. PW1/C. 17 Her further examination-in-chief was recorded on 05.02.2015 after the arrest of A-3 Fazer Ali @ Fojer and she reiterated the entire episode. She also identified A-3 in the court during the deposition and also deposed that she had identified him in TIP as well.
18 PW4 Neeraj Maan has also corroborated her mother. She has deposed that on 17.09.2011 she had gone to meet her mother at about 9.30 PM and stayed there. She and her mother were sleeping in a room when at about 2.00 AM, her mother got up on hearing some noise and after some time, she also got up and saw that three boys had entered their room who all were armed with knives. One more boy was standing outside. She testified that all three boys had threatened them and asked them to hand over the jewellery articles otherwise they would be killed. On this, her mother handed over her four bangles (weighing five tolas), one pair kundal (weighing about half tola), two gold rings (weighing one tola each). She handed over her own gold chain with 'Om' pendant (weighing FIR No. 243/2011 PS Adarsh Nagar (State Vs. Sheikh Mofizul etc) Page 6 of 21 about three tolas), one pair of tops (weighing about half tola), three gold rings (weighing about 1.5 tola) and two gold kadas (weighing about 2.5 tolas) which she was wearing at that time. She also deposed about taking of said two mobile phones as well as cash amount of Rs. 50,000/-. She deposed that after committing the robbery, accused persons bolted the room from outside and ran away. She further deposed that after opening the window of the room, they came out and informed the neighbours and thereafter police was informed. She also identified A-1 & A-2 in her testimony dated 07.10.2013 and also identified A-3 in her subsequent deposition dated 05.03.2015.
19 I have seen the cross-examination of both the aforesaid material public witnesses and I have not been able to come across any infirmity or contradiction which may go to the root of the matter and may put a question mark over the authenticity and genuineness of the case of prosecution.
20 Naturally, it was dead hour of the night and complainant Malti and Neeraj Maan were sleeping. It was, therefore, dark inside the room but Malti has categorically claimed in her cross-examination that when accused had entered the house, they had switched on the light. It is evident that, therefore only, she was able to identify the accused persons. Even both the aforesaid witnesses are very specific about the three robbers who had entered inside the house and they are also very specific that one other accused was standing at the gate. Admittedly, ownership documents related to robbed jewellery articles were not supplied to the police. However, PW1 Malti has claimed that it was gold jewellery which had been presented to her by her parents at the time of her marriage and, therefore, she was not having any documentary proof regarding robbed jewellery. Defence cannot dig out any advantage merely because of absence of any documentary proof. In view of aforesaid deposition, reason assigned by PW1 Malti seems believable every inch. As regards the cash amount of Rs. 50,000/-, PW1 Malti has claimed that notes were in the denomination of 500. She claimed that these were not withdrawn from any bank and money belonged to her daughter and it was to be utilized towards the expenses to be incurred on one puja which was to take place in their house for Shraadh. In her further cross- examination dated 05.02.2015, she also claimed that her husband was also FIR No. 243/2011 PS Adarsh Nagar (State Vs. Sheikh Mofizul etc) Page 7 of 21 earning handsome and, therefore, they were having that much cash. PW4 Neeraj Maan has also deposed that all jewellery articles which belonged to her were given to her by her in-laws at the time of her marriage and according to her, she had documentary proof/kuchha bill with her which she could produce before the Court if required. Fact remains that defence did not insist for production of such bills during her cross-examination.
21 As regards two mobile phones, as per the deposition of complainant, she had one MTS mobile and her daughter had one HTC mobile phone. Police could recover only one mobile of HTC from the possession of A-1 when he was arrested on 07.10.2011. Seizure memo in this regard has been proved as Ex. PW13/D. IMEI number is also found to be the same. Such mobile phone was released on superdari to PW7 Sanjay Maan during investigation and its photographs were retained at the time of such release. Such photographs have been proved as Ex. PW1/E to Ex. PW1/E1.
22 Prosecution has also examined PW7 Sanjay Maan (husband of PW4 Neeraj Maan). He happens to be owner of said mobile phone. He had also taken the same on superdari. He has proved the superdarinama as Ex. PW7/A. Fact, however, remains that he lost such mobile phone subsequently while shifting of his house and got lodged a report to that effect with the police. Such report has been proved as Ex. PW7/B. He also deposed that he did not have the proof of purchase i.e. bill regarding said mobile phone and it was purchased in the year 2007. He, however, brought the box of the mobile phone, photograph of which is Ex. PW7/C. 23 As far as the other mobile phone of MTS (ZTE) mobile is concerned, PW6 Sh. Kush has proved the bill as Ex. PW1/C under which the said mobile had been sold against cash. Interestingly, though the name of the buyer is not mentioned on the bill, PW6 Kush has categorically deposed that it was purchased by Malti Devi. Defence did not put any question as to how he was able to reveal the name of the buyer and, therefore, it seems that defence does not dispute this fact. Be that as it may, such fact pales into some insignificance as said mobile could not be recovered at all.
FIR No. 243/2011 PS Adarsh Nagar (State Vs. Sheikh Mofizul etc) Page 8 of 2124 Sh. Anwar Ahmad Khan, learned defence counsel for A-1 & A-3 has, however, assailed the prosecution case, principally, on the issue of identification. According to him, the concerned witnesses i.e. PW1 Malti Dahiya and her daughter PW4 Neeraj Maan have identified the accused on the basis of inputs and tutoring coming from the side of police. He has argued that police had already shown the accused persons to them at the police station and in such a situation, identification in dock is meaningless. He has also assailed the TIP on account of there being delay in TIP. He has relied upon following judgments on the point of identification:-
(i) State of Andhra Pradesh Vs. Sayyaad Siraj Mohammed & Ors.
(2009) 13 SCC 417.
(ii) Deepak Singh Negi & Ors. Vs. State (NCT of Delhi) 2007 [3] JCC 2366.
(iii) Jafar Malik Vs. The State (NCT of Delhi) Crl. Appeal No. 573/2007 (DOD: 03.03.2009).
(iv) Wakil Singh & Ors. Vs. State of Bihar AIR 1981 SC 1393.
(v) Subash & Shiv Shankar Vs. State of UP AIR 1987 SC 1222.
(vi) Vinod Singh Vs. Govt of NCT Delhi Crl. Appeal No. 31/2000 (DOD 04.07.2011).
(vii) Arif Vs. State Govt of NCT of Delhi 2015 (3) Crimes 203 (Del.)
25 I have carefully perused the aforesaid judgments. There cannot be any qualm with respect to the settled legal propositions. If police shows any accused to a witness before holding of judicial TIP then naturally such TIP loses its sheen and evidentiary value. Naturally, in such a peculiar background, the purpose of holding of TIP would stand frustrated. To that extent, therefore, there cannot be any disagreement and if defence is able to show that prior to holding of judicial TIP, accused (s) were shown to the witnesses then such identification in TIP and the subsequent identification in the dock during the trial may not be given equivalent weightage and credence. Needless to say that it is also always important for investigating agency to pray for holding of judicial TIP immediately after the arrest and if any police custody remand is to be taken, even such police FIR No. 243/2011 PS Adarsh Nagar (State Vs. Sheikh Mofizul etc) Page 9 of 21 custody remand should be, as far as possible, taken after holding of such judicial TIP.
26 I would also hasten to supplement that following aspects also need to be kept in mind in the context of Test Identification Parade:-
(i) Test identification parade (TIP) is a part of the investigation and is very useful in a case where the accused are not known beforehand to the witnesses. It assures the investigating agency that the investigation is proceeding in the right direction. TIP is held during investigation to minimize the chances of memory to identifying witnesses fading away due to long lapse of time.
(ii) Identification of the accused in the Court is a substantive evidence. The previous identification in the test identification parade is a rule of prudence and not law.
It simply acts as a check valve to the evidence of identification in court of an accused by a witness.
(iii) Absence of test identification parade is not ipso facto fatal.
(iv) If the accused is named or sufficiently described in the complaint leaving no doubt in the mind of the court regarding his involvement, safely then identification for the first time before court can also be considered.
(v) If an accused is well known to the prosecution witnesses from before, no test identification parade is called for and it would be meaningless and sheer waste of public time to hold the same. Where the witness had a chance to interact with the accused or where the witness had an opportunity to notice the distinctive features of the accused which lends assurance to his testimony in the Court, the evidence of identification in the court for the first time by such witnesses cannot be thrown away merely because any identification parade was not held.
(vi) TIP should always be held as expeditiously as possible and police custody remand should invariably be obtained after such aspect of TIP is over.
(vii) Mere failure to hold a TIP is not fatal to the prosecution case all by itself but the court will need to be circumspect in accepting the identification of an accused by a witness in the Court if the accused is a stranger to the witness.
(viii) Substantive evidence of identification in Court after a long lapse of time may be a weak piece of evidence in absence of previous TIP. However, even such evidence can be admitted if sufficiently explained and corroborated.
(ix) Whether the evidence deserves any credence or not would always depend on the facts and circumstances of each case. It will be also important to see whether the incident had taken place in broad day light, fading light or in the dark.
(x) A witness, who also receives injuries or is a victim of offence and who had a chance to see the faces of the offenders, would be an important aspect as identity would well remain imprinted in his mind.
FIR No. 243/2011 PS Adarsh Nagar (State Vs. Sheikh Mofizul etc) Page 10 of 2127 Let me now take note of certain details with respect to each of the accused starting from their arrest. These are as under:-
Details regarding A-1 Sheikh Mofizul S. Particulars Date Remarks No. 1 Date & Time of Arrest 07.10.2011 4.00 PM Arrested on the basis of secret information.
(Arrest Memo is Ex. PW13/A).
2 Date of Production before 08.10.11 Accused was produced before learned Duty the Court Magistrate and he was sent to judicial custody remand till 10.10.11.
3 Date when PC was given 10.10.2011 Police custody remand was obtained for one day.
During such remand, he was kept in muffled face and was taken to various places for apprehending his co-accused and for recovery of robbed articles.
He was also got medically examined. Accused was produced in muffled face before the Court on 11.10.2011 and was remanded to judicial custody till 24.10.2011.
4 Date of moving application 13.10.2011 for holding of TIP 5 Date when TIP was actually 15.10.2011 TIP proceedings were conducted at Rohini Jail held (TIP Proceedings are Ex. PW1/B) where accused was identified by PW1 Malti Dahiya only.
Such TIP proceedings were conducted by PW12 Sh. Dheeraj Mor, learned MM.
6 Date of supplementary 24.10.2011 Supplementary statements of PW1 Malti Dahiya & statement of concerned PW4 Neeraj Maan were recorded who both had eyewitnesses, if any. come to Rohini Court Complex. They identified him that day.
Details regarding A-2 Sheikh Sahadat
S. Particulars Date Remarks
No.
1 Date & Time of Arrest 01.12.2011 12.30 PM Since A-2 was reportedly in judicial custody in case
(Arrest Memo is Ex. PW13/A) FIR No. 372/11 u/s 356/379/411 IPC PS Jahangir Puri, application was moved seeking issuance of his production warrants. He was arrested pursuant to production warrants in this case.
2 Date of Production before the 01.12.2011 Court 3 Date of moving application 01.12.2011 for holding of TIP 4 Date when TIP was actually 01.12.2011 Accused refused to participate in TIP proceedings held (TIP proceedings Ex. PW11/A) claiming that he had been shown to witness in PS. Such TIP proceedings were conducted by PW11 Ms. Shefali Barnala Tandon, learned MM.
FIR No. 243/2011 PS Adarsh Nagar (State Vs. Sheikh Mofizul etc) Page 11 of 215 Date when PC was given 02.12.2011 Application for seeking police custody remand was moved on 02.12.2011. Accused was produced before the Court and was remanded to police custody till 05.12.2011 who was further remanded to JC till 09.12.2011.
6 Date of supplementary 09.12.2011 Accused was identified in the Rohini Court Complex
statement of concerned by both the aforesaid witnesses i.e. PW1 Malti
eyewitnesses, if any. Dahiya and PW4 Neeraj Maan.
Details regarding A-3 Fazer Ali @ Fojer
S. Particulars Date Remarks
No.
1 Date & Time of Arrest 09.09.2014 12.25 PM Arrested on the basis of secret information.
(Arrest Memo is Ex. PW16/A)
2 Date of Production before the 09.09.2014 Accused was produced before learned Duty
Court Magistrate and he was sent to judicial custody
remand till 10.10.11.
3 Date when PC was given 23.09.2014 Police custody remand was given for one day.
4 Date of moving application 09.09.2014
for holding of TIP
5 Date when TIP was actually 22.09.2014 TIP proceedings were conducted at Rohini Jail
held (TIP proceedings are Ex. PW17/A) where accused was identified by PW1 Malti
Dahiya & PW4 Neeraj Maan. Such TIP
proceedings were conducted by Sh. Harjeet
Singh Jaspal, learned MM.
6 Date of supplementary 22.09.2014 Statements of Ms. Malti Dahiya and Ms. Neeraj
statement of concerned Maan with respect to identification of A-3 were
eyewitnesses, if any. recorded.
28 As far as A-1 Sheikh Mofizul is concerned, he was arrested on
07.10.2011 and was produced before the Court next day. His police custody remand was also obtained for one day. He was produced before the court in muffled face on 10.10.2011 and there is nothing on record which may show that during such police custody remand, he was shown to any witness by the police. Merely because he was on police custody remand, it cannot be robotically inferred that A-1 was shown to any eyewitness. Moreover, police custody remand had been obtained for apprehending his co-accused and for recovery of robbed articles.
29 I have seen the testimony of PW15 Insp. Arvind Pratap Singh and he deposed that accused was produced before the Court and was remanded to judicial custody. He also deposed that he moved application for TIP which was FIR No. 243/2011 PS Adarsh Nagar (State Vs. Sheikh Mofizul etc) Page 12 of 21 fixed for 15.10.2011. Fact, though, remains that before that accused had already been taken on police custody remand for one day. PW15 Insp. Arvind Pratap Singh has also deposed that he advised accused to cover his face as TIP was to be conducted and accused acted on his advice and covered his face with cloth which was provided to him. I have seen the cross-examination of Insp. Arvind Pratap Singh and astonishingly, no suggestion has been put to him to the contrary to show or assert that during the period of such police custody remand or at any time prior to that, accused had been shown to the witnesses. Undoubtedly, it would have been better if the request for police custody remand had been made after TIP but nonetheless, there is nothing on record which may even remotely suggest that accused had been shown to the witnesses prior to holding of such judicial TIP. Interestingly, in cross-examination of Insp. Arvind Pratap Singh, it is also appearing that it was correct that complainant had contacted him to ascertain progress of the case after the arrest of both the accused i.e. A-1 and A-2 and then he told them about the progress of the case. This answer is response to the specific question of defence. Second accused i.e. A-2 Sheikh Shahdat had been arrested only on 11.12.2011 which means that complainant did not know about the arrest of A-1 on 07.10.2011. TIP proceedings related to A-1 have been proved as Ex. PW1/B. As per said TIP proceedings, witness Malti Dahiya had identified accused correctly. It seems to me that another witness i.e. PW4 Ms. Neeraj Maan was not called for judicial TIP of A-1 Sheikh Shahdat. Fact, however, remains that both these witnesses had come to Rohini Court Complex on 24.10.2011 also and at that time they both had also identified A-1. PW4 Ms. Neeraj Maan has also categorically deposed in this regard and has claimed that on 24.10.2011, she along with her mother Malti Dahiya had come to Rohini Courts and had identified A-1 as one of those boys who had committed robbery in their house. She also claimed in her cross-examination that her statement was recorded in the court premises itself on 24.10.2011 as well as later on i.e. on 09.12.2011. She also categorically deposed that she had not gone to police station for identification of accused.
30 Coming to A-2 Sheikh Shahdat, he was arrested on 01.12.2011 and same day, he had refused to participate in TIP. It will be important to reiterate that he was already in custody in some other case and he was produced in the FIR No. 243/2011 PS Adarsh Nagar (State Vs. Sheikh Mofizul etc) Page 13 of 21 Court pursuant to the production warrants and, therefore, even otherwise, there was no possibility of A-2 Sheikh Shahdat being shown to any of the eyewitnesses. Ms. Shivali Gautam has though questioned the manner of identification and has also expressed her concern and raised suspicion that accused was shown to complainant before the TIP yet, as already noticed above, there was no occasion, even otherwise, for complainant/eyewitnesses to have met or come across A-2 Sheikh Shahdat. Defence apprehension, in this context, therefore, does not hold any water.
31 As far as A-3 Fazer Ali is concerned, his case seems to be little bit dissimilar. It has come on record that when A-1 and A-2 were apprehended earlier, they had disclosed the name of their co-accused (s). They revealed the name of Fazer Ali also. Police, however, could not apprehend such Fazer Ali. He was arrested in the present case only on 09.09.2014. Reference in this regard be made to the testimony of PW16 ASI Ram Avatar as well as to the testimony of PW17 SI Praveen Kumar. Testimony of PW16 ASI Ram Avatar is unrebutted and uncontroverted. He has deposed that on secret information, he had gone near the jhuggi of Shahid at Shah Alam Bagh Road where he met HC Naresh and Ct. Anil along with accused Fazer Ali. HC Naresh told him that Fazer Ali was wanted accused in the present case and after formal interrogation, Fazer Ali was arrested. His arrest memo and personal search memo have been duly proved by PW16 ASI Ram Avatar. Pointing out memo Ex. PW16/D was also prepared at the instance of A-3. He also deposed that accused was kept in muffled face and was produced in the court after his medical examination from where he was remanded to judicial custody by the court. He also claimed that application for TIP was moved and thereafter further investigation was carried out by SI Praveen Kumar.
32 PW17 SI Praveen Kumar has deposed that he had received the file of the present case on 10.09.2014 and came to know that TIP of accused was already fixed for 15.09.2014 and accordingly he served notice to Ms. Neeraj Maan and Ms. Malti Dahiya to reach Rohini Jail but that day TIP proceedings could not be conducted as Ms. Malti Dahiya was not fit and, therefore, date was changed and TIP was rescheduled for 22.09.2014.
FIR No. 243/2011 PS Adarsh Nagar (State Vs. Sheikh Mofizul etc) Page 14 of 2133 Even as per the details extracted above, police custody remand of A-3 Fazer Ali was given by the Court only after the TIP proceedings were over and, therefore, apparently there seems no possibility of police showing the accused to the witnesses prior to the holding of TIP. However, there is one strong aspect which compels me to re-think about the identification aspect of A-3 all over again.
34 It is manifest that police did not arrest accused Fazar Ali at the first available opportunity. This I can say with strong conviction on the basis of testimony of PW1 Ms. Malti Dahiya. In her cross-examination dated 03.02.2014, she claimed that after the incident, she was called at the police station and was asked to identify third accused from amongst the 4-5 persons present at the PS and she had identified one of them. According to her, police told name of such boy as Fojer. She even claimed that later on also she had seen such third accused i.e. Fojer running a junk dealer shop (kabari shop) in their area behind their house.
35 Such aspect is very crucial.
36 I re-emphasize that her such deposition was recorded on 03.02.2014. As per the admitted case of prosecution, accused Fazer Ali @ Fojer had been arrested in the present case only on 09.09.2014 on the basis of some secret information. Thus, before his arrest in the present case, witness had seen him at PS. Manner in which accused Fazer Ali @ Fojer was shown to the witness and the manner in which police had tried to conduct a sort of judicial TIP in the police station is not in a good taste and creates suspicion in the mind of the Court with respect to the crucial aspect of identification of A-3 Fazer Ali @ Fojer. Question, however, arises whether benefit in this regard should go to the accused or not. Needless to say that guilt of the accused is required to be proved beyond reasonable doubt. Ours is an adversarial system of law and keeping in mind the theory of proving guilt to the hilt, naturally speaking, benefit is required to be given to the accused wherever there is any such element. Since police had unjustifiably and illegally shown accused Fazer Ali @ Fojer to the witness and usurped the FIR No. 243/2011 PS Adarsh Nagar (State Vs. Sheikh Mofizul etc) Page 15 of 21 judicial powers of holding TIP, accused Fazer Ali @ Fojer becomes entitled to benefit of doubt. Undoubtedly, PW1 Ms. Malti Dahiya re-entered into witness box on 05.02.2015. She identified accused Fazer Ali @ Fojer as well. She had also identified him in judicial TIP on 22.09.2014 but there is no explanation much less plausible one as to why police had shown this accused to the witnesses before February 2014. I have slight reservation about identification of A-3. It's not amply comprehensible whether he was identified in the dock on the basis of actual occurrence and consequent imprinted memory or on the basis of his being shown to the complainant at PS. This, therefore, earns benefit of doubt for him.
37 Let me now switch over to some aspects related to investigation. PW8 Ct. Vivek was posted as DD Writer at PS Adarsh Nagar and at about 2.35 AM, he received information regarding incident of robbery at B-27, Nanda Road, Adarsh Nagar Extension and as per information, four persons had looted jewellery at the point of pistol. Such DD No. 13B has been duly proved as Ex. PW8/A. 38 PW9 ASI Durga Prasad and PW10 Ct. Krishan had reached the spot immediately on receipt of said DD. I have seen their testimony and they both have supported the case of prosecution and also corroborated each other. PW9 ASI Durga Prasad has deposed that when they reached at the spot, they saw articles in the room in scattered condition. He then met Malti Dahiya and her daughter Neeraj Maan and recorded statement of Malti Dahiya. Such statement has been proved as Ex. PW1/A. On the basis of such statement, he prepared rukka Ex. PW9/A and sent the same to PS through Ct. Krishan for registration of FIR. FIR has also been duly proved as Ex. PW2/A by concerned duty officer i.e. PW2 SI Raj Pal Rana. PW9 ASI Durga Prasad further deposed that he had telephonically intimated Crime Team to reach at the spot and at about 4.15 AM, SI Arvind Pratap Singh (PW15) had reached at the spot. Crime Team also reached at the spot. PW3 SI Matadin happens to be the Incharge Crime Team and he has proved Crime Scene Report as Ex. PW3/A. Fact, however, remains that police could not lift any chance-print from the spot. Crime Team photographer i.e. PW5 Ct. Dalbir Singh has also deposed about the photographs which he had taken at the spot.
FIR No. 243/2011 PS Adarsh Nagar (State Vs. Sheikh Mofizul etc) Page 16 of 2139 Further investigation was carried out by PW15 Insp. Arvind Pratap Singh and he had also deposed that as per the instruction of SHO, PS Adarsh Nagar, he had reached said house and met Malti Dahiya and her daughter Neeraj Maan. He also noticed that crime team was already present at the spot and even dog squad had visited the spot. He recorded statement of concerned officials and prepared site plan Ex. PW15/A at the instance of complainant Malti Dahiya. He also recorded her supplementary statement.
40 As far as arrest of accused Sheikh Mofizul (A-1) is concerned, reference can be made to the testimony of PW15 Insp. Arvind Pratap Singh as well as to the testimony of PW13 Ct. Ravinder. On the basis of secret information, A-1 was apprehended and when he was searched, one mobile phone make HTC was recovered which he was carrying in his right side pocket of wearing pants. IMEI number of such mobile phone was tallied and it matched with robbed mobile. Seizure memo of such mobile phone has been proved as Ex. PW13/D. He then advised A-1 to cover his face as his TIP was to be conducted. PW13 Ct. Ravinder has also supported him on this aspect and they both have also correctly identified him as well as deposed about recovery of phone.
41 As regards arrest of accused Sheikh Shahdat (A-2), reference can be made to the testimony of PW14 Ct. Gurdeep as well as to the testimony of PW15 Insp. Arvind Pratap Singh. PW15 Insp. Arvind Pratap Singh has deposed that he learnt about the arrest of accused Sheikh Shahdat (A-2) in other case on 28.11.2011 and, therefore, he made request before the court for issuance of production warrants, pursuant to which accused was produced before the court of learned MM on 01.12.2011. He along with PW14 Ct. Gurdeep reached Rohini Courts and interrogated him with the permission of the Court and formally arrested him. He also deposed about preparation of various documents viz arrest memo, personal search memo and disclosure statement. He also deposed that same day, he had moved an application for holding of judicial TIP of accused Sheikh Shahdat (A-2) but accused Sheikh Shahdat (A-2) refused to participate in such TIP. Thereafter, PC remand of two days was obtained and at the instance of A-2, pointing out memo (Ex. PW15/B) was prepared when one another constable FIR No. 243/2011 PS Adarsh Nagar (State Vs. Sheikh Mofizul etc) Page 17 of 21 i.e. Ct. Amit Kumar was with him. He also deposed that on 09.12.2011, accused Sheikh Shahdat (A-2) was identified by Malti Dahiya and her daughter Neeraj Maan in the Rohini Court Complex outside the court of learned Magistrate.
42 As regards arrest of accused Fazer Ali @ Fojer (A-3), reference be made to the testimony of PW16 ASI Ram Avtar and PW17 SI Praveen Kumar. Accused Fazer Ali @ Fojer (A-3) was arrested on 09.09.2014 on the basis of secret information and his arrest memo, personal search memo and pointing out memo have been duly proved by PW16 ASI Ram Avatar. PW16 ASI Ram Avatar has also deposed that accused Fazer Ali @ Fojer (A-3) was kept in muffled face and was remanded to JC and an application for TIP was moved. He deposed that further investigation was carried out by SI Praveen Kumar. PW17 SI Praveen Kumar has deposed that TIP of accused Fazer Ali @ Fojer (A-3) was fixed for 15.09.2014 but it could not be conducted that day and it was rather conducted on 22.09.2014 when both the witnesses identified him. He then obtained police custody remand of accused Fazer Ali @ Fojer (A-3) and made efforts to trace out one another accused and also tried to recover the stolen property but nothing could be recovered.
43 It has been argued by Sh. Khan that names of the offenders were not mentioned by the witnesses in FIR and, therefore, accused are entitled to benefit of doubt.
44 In this regard he has relied upon following two judgments:-
(i) Husna & Ors. Vs. State of Punjab 1996 SCC (Cri) 421.
(ii) K. Ashokan & Ors. Vs. State of Kerala AIR 1998 SC 1974.
45 I have carefully gone through the aforesaid judgments and facts were altogether different in those cases. Here, case is of robbery which took place at dead hour of the night and such robbery had been committed by the offenders, who were not known to the victims and, therefore, naturally speaking, there was no possibility for the victims to have revealed their names. Victims, however, categorically claimed that they could identify those robbers and also claimed that they were four in number. Thus, defence cannot be permitted to dig out any FIR No. 243/2011 PS Adarsh Nagar (State Vs. Sheikh Mofizul etc) Page 18 of 21 advantage out of said judgments.
46 Robbers gained entry in house by cutting iron mesh of the entrance door. PW1 Malti Dahiya has also identified one particular photo i.e. Ex. PW1/D which also shows the door/gate, net of which can be seen 'cut'. It is quite evident that after cutting the net from the upper side, robbers must have put their hands inside the door and were able to reach the latch and were thus able to unlock the same by pushing down the latch (chitakni).
47 I have seen the entire record as well as the written arguments submitted by Sh. Khan on behalf of A-1 & A-3 and I have given my thoughtful consideration to the defence contentions made by Ms. Shivali Gautam. I do not find any omission or contradiction which may go to the root of the matter and shake the foundation of the prosecution case. Moreover, it has not been explained by the defence counsels as to why these two ladies would unnecessarily try to falsely implicate anyone with whom they have no previous animosity or enmity. Undoubtedly, there is no witness from the neighbourhood but it is also harsh reality that neighbours rarely come forward. Prosecution cannot be thrown away merely because there is no independent corroboration. I also cannot be oblivious of the fact that incident of robbery had taken place at dead hour of the night inside the house of Malti Devi and in such a situation, any neighbour of Malti Devi, even otherwise, would not have been in any position to give any real assistance to the case of prosecution. I do not find any delay in recording of the FIR which can be said to be fatal. Incident had taken place inside the house and it has also come on record that at the time of robbery, light was switched on by the robbers. Moreover, minor contradictions can surface in any criminal trial as it is not expected that all the witnesses would depose with complete mathematical precision as if they were having photogenic memory more so when they were under utter shock and were evidently terrified. In the case of BABASAHEB VS. STATE OF MAHARASHTRA 2009 (1) AD CRL. SC 576, it has been observed that trivial discrepancies ought not to obliterate otherwise acceptable evidence. It has been held that unless the contradictions are material, the same cannot be used to jettison the evidence in its entirety. 48 Though the testimony of both the material witnesses also raise FIR No. 243/2011 PS Adarsh Nagar (State Vs. Sheikh Mofizul etc) Page 19 of 21 clear-cut accusing finger towards the involvement of accused A-3 Fazer Ali @ Fojer yet I have no option but to give him benefit of doubt because of imprudent act of the police whereby they grabbed judicial powers and showed accused Fazer Ali @ Fojer to the witnesses much before he was even arrested in the present case.
49 I, therefore, grant benefit of doubt, to (A-3) Fazer Ali @ Fojer though with heavy heart, and acquit him of all the charges. However, remaining two accused persons, namely, Sheikh Mofizul (A-1) and Sheikh Shahdat (A-2) are held guilty.
50 They both have along with their two other associates had committed house breaking in order to commit robbery after making preparation in this regard. Thus, they both are held guilty for commission of offence under Section 457/34 IPC. They both committed robbery and took away gold ornaments, mobile phone and cash from the house of complainant Malti Dahiya and, therefore, they are held guilty for commission of offence under Section 392/34 IPC as well. At the time of committing such robbery, all the robbers were armed with deadly weapons. PW1 Malti Dahiya had categorically claimed that all such boys were having knives and such knives were put on the neck of children and they were threatened to hand over all the wearing gold ornaments. Similarly, those robbers also later on threatened Neeraj Maan when she woke up. According to PW1 Malti Dahiya, these knives were not conventional type of knives. Rather these were choppers used for cutting meat. She claimed that accused were armed with big iron rod and pistol besides four chopper knives. PW4 Neeraj Maan has, however, used word knives and not chopper. Fact, however, remains that even knife falls within the definition of deadly weapon so as to attract Section 397 IPC.
51 However, since no hurt was caused to anyone during the incident of robbery, offence under Section 394 IPC does stand proved.
52 As far as recovery of stolen mobile phone is concerned, it also stands proved that one such stolen mobile phone make HTC was recovered from the conscious possession of A-1 on 07.10.2011.
FIR No. 243/2011 PS Adarsh Nagar (State Vs. Sheikh Mofizul etc) Page 20 of 2153 Accordingly, A-1 and A-2 are held guilty for commission of offences under Sections 457/392/34 IPC and convicted thereunder and since they were found in possession of deadly weapons, they are liable to undergo minimum sentence in terms of Section 397 IPC. Simultaneously, A-1 is also held guilty for commission of offence under Section 411 IPC and convicted thereunder.
Announced in the open Court
On this 2nd day of September 2015 (MANOJ JAIN)
Addl. Sessions Judge (FTC)
North-West District: Rohini: Delhi
FIR No. 243/2011 PS Adarsh Nagar (State Vs. Sheikh Mofizul etc) Page 21 of 21
FIR No. 243/2011
PS Adarsh Nagar
State Vs. Sheikh Mofizul etc.
Thursday, September 03 2015
Present: Sh. Sanjay Jindal, learned Addl. P.P. for State
Convict Sheikh Mofizul in JC with Sh. Anwar Ahmad Khan, learned defence counsel.
Convict Sheikh Shahdat in JC with Sh. Anwar Ahmad Khan as proxy counsel.
Acquitted-accused Fazer Ali @ Fojar with counsel.
1 Acquitted-accused Fazer Ali @ Fojar has furnished bonds in terms of Section 437A Cr.P.C. Accepted.
2 Heard arguments on sentence.
3 Learned Addl. P.P. has prayed for maximum sentence for both the convicts as such incidents are on rise and such offenders need to be dealt with stern hands. He states that convicts have shown audacity of committing robbery by house breaking in a busy residential area. He has supplemented that there was no male member present that night in that house and both the ladies i.e. Complainant and her daughter were robbed of jewellery, mobiles and cash at the point of knives.
4 Learned defence counsel has, on the other hand, prayed for maximum leniency. It has also been reiterated that they both are innocent.
5 It has also been asserted that convict Sheikh Mofizul is sole bread earner for his family which comprises of his widowed mother, wife and two small kids of tender age. He is reportedly a junk dealer with no previous involvement. Convict Sheikh Shahdat is reportedly sole bread earner for his parents. He is reportedly unmarried but having previous involvement of similar kind.
6 I have pensively contemplated said contentions.
FIR No. 243/2011 PS Adarsh Nagar (State Vs. Sheikh Mofizul etc) Page 22 of 217 Undoubtedly, such incidents of robbery are swelling at an alarming rate in capital city. A message, actually, needs to percolate so that any such person, having puckish plans to commit robbery, thinks twice before indulging into any such despicable act.
8 I also cannot resist complimenting the two ladies. There were three kids sleeping in that house with them as well. There was no male member in the family and the sudden emergence of four intruders inside the house at dead hour of the night would have shaken anyone, what to say of a woman. However, they acted prudently. They were mindful of the fact that robbers were armed and in such a situation, they chose to go for the next best available option and, as per the demand of the situation, gave in to the demands of the robbers and parted their valuables albeit with heavy heart and in the process bargained their lives.
9 Fact remains that police could not recover jewellery and cash of Rs. 50,000/-.
10 It is also quite palpable that convicts did not deter and stop even after committing the robbery in question. If record is to be believed, they tried to gag their mouths by threatening that their lives would not be spared if they deposed against them. In fact, one such report has also been duly proved before the Court. During trial also, one of the victims echoed so in witness box.
11 I must applaud that despite such terrorization, they chose to stick to the truth and gave deposition in a courageous manner. They both are, in fact, real brave hearts. It, therefore, becomes the duty of the Court as well as of the police to reciprocate in the same manner and, therefore, it has to be ensured that they do not receive any intimidation or danger, direct or indirect, from them in future.
12 A copy of this order be, therefore, sent to DCP, North-West District with request to look into the matter at personal level and to ensure that both these witnesses and their family members have continuous support and protection from police particularly when these convicts happen to come out from jail on bail or on parole or after completion of period of sentence. It is expected that a FIR No. 243/2011 PS Adarsh Nagar (State Vs. Sheikh Mofizul etc) Page 23 of 21 comprehensive report in this regard would be submitted by him within 5 weeks from today.
13 Simultaneously, since robbed articles have not been recovered, I also find it to be a fit case where matter needs to be referred to Delhi Legal Service Authority, North-West District to evaluate as to what best compensation can be given to them. It's easy to figure out that they must have undergone deep trauma and every institution, which is part of justice delivery system, has to do its bit to give support to such fearless citizens who choose to depose truth despite threats particularly when no personal interest is at stake.
14 Keeping in mind the overall facts and circumstances of the case, I sentence each convict as under:
Convict Sheikh Mofizul S. Sections Period of Fine Period of further No. Rigorous Amount imprisonment in Imprisonment ( in INR) default of payment of fine 1 457/34 IPC 7 years 5000 6 months 2 392/34 IPC in 8 years 5000 6 months conjunction with Section 397 IPC 3 411 IPC 1 year 2000 2 months Convict Sheikh Shahdat S. Sections Period of Fine Period of further No. Rigorous Amount imprisonment in Imprisonment default of payment of fine 1 457 IPC 7 years 5000 6 months 2 392/34 IPC in 8 years 5000 6 months conjunction with Section 397 IPC
15 All the sentences would run concurrently.
16 Both the convicts would be entitled to benefit of Section 428 Cr.P.C.
FIR No. 243/2011 PS Adarsh Nagar (State Vs. Sheikh Mofizul etc) Page 24 of 2117 Both the convicts be sent to jail under appropriate warrants.
18 A copy of the judgment and order on sentence be given free of cost to all the convicts.
19 Convicts have also been made aware that they can challenge the order of their conviction and order on sentence by filing an appeal before High Court of Delhi. They can also avail services of Delhi High Court Legal Services Committee having office at 34-38, Lawyers Chamber Block, Delhi High Court, New Delhi.
20 Sh. Anwar Ahmad Khan, learned defence counsel has also apprised about such option to the convicts.
21 Superintendent (Jail) would also ensure that in case convicts seek any legal aid for the purposes of filing of an appeal, immediate and requisite help is provided to them. A separate copy of this order be sent to him. 22 Fine not deposited.
23 File be consigned to Record Room.
Announced in the open Court (MANOJ JAIN) On this 3rd day of September 2015. Addl. Sessions Judge (FTC) North-West District: Rohini: Delhi FIR No. 243/2011 PS Adarsh Nagar (State Vs. Sheikh Mofizul etc) Page 25 of 21