Delhi District Court
Sc No. 373/2021 State vs . Rizwan @ Rizzu Page No. 1 Of 13 on 9 June, 2022
IN THE COURT OF SHRI ANUJ AGRAWAL
ADDITIONAL SESSIONS JUDGE-05, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
SC No. 373 of 2021
CNR No. DLSE01-008803-2021
State
Vs.
1. Rizwan @ Rizzu
S/o Sh. Abdul Habib
R/o C-241, Nai Basti,
Jamia Nagar, New Delhi.
FIR No. 242/21
PS: Shaheen Bagh
U/s: 392/397/411 IPC
& 25/54/59 Arms Act
Instituted on : 11.09.2021
Committed on : 06.10.2021
Argued on : 09.06.2022
Decided on : 09.06.2022
JUDGMENT
1. The victim Arbaj Ahmed, an auto driver is alleged to have been robbed of his mobile phone and cash by accused Rizwan @ Rizzu in the instant case and the said robbery is the subject matter of present trial. The facts, as per prosecution version, may be taken note of: On the intervening night of 13/14.07.2021, an information regarding snatching at knife point at Okhla Vihar, Metro Station, Jamia Nagar was received in SC No. 373/2021 State vs. Rizwan @ Rizzu Page No. 1 of 13 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.06.09 12:37:03 +0530 concerned police station which was recorded vide DD No.5A & 8A. On 14.07.2021, complainant Arbaj Ahmad came to police station and gave his complaint, wherein he stated that on the intervening night of 13 th/14th July, 2021 at about 1.00 AM at Zakir Nagar, one person sat in his running auto near transformer and asked him in abusive language to drop him at Okhla Head and threatened at a knife point by saying " faad dunga, mera naam Rizwan Rizzu hai, mein Abul Fazal Enclave ka don hoon, chupchap chal".
1A. It was further alleged that when they reached Okhla Head, the complainant asked the said person to get down from his auto but he refused and asked the complainant (on a knife point) to drop him at Thokar No.3 pm. As per complainant, when they reached at Thokar No.3, he requested said person to get down from his auto but he again refused and robbed him of Rs. 780/- and his mobile phone on the knife point and ran away after throwing the robbed mobile phone upon the complainant. On these allegations, instant FIR was registered for offence u/s 392/397 IPC.
1B. During investigation, on 15.07.2021, accused Rizwan @ Rizzu was arrested and one buttondar knife was recovered from his possession. Accused refused to participate in Test Identification Proceedings (TIP) during course of investigation. Upon completion of investigation, charge sheet u/s 173 Cr.PC was filed against the accused for offences u/s 392/397/411 IPC & 25 Arms Act. After statutory compliance, present case was committed to the Court of Sessions by Ld. Magistrate vide order dated 01.10.2021.
SC No. 373/2021 State vs. Rizwan @ Rizzu Page No. 2 of 13
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.06.09
12:37:19 +0530
2. Vide order dated 07.10.2021, the accused was formally charged for commission of offences under section 392/397 IPC & 25 Arms Act, to which he pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution examined 04 witnesses.
4. PW1 Sh. Arbaj Ahmed is the complainant/victim, who deposed that on 13.07.2021 at about 11.00 PM, while he was present in his auto bearing No. DL1RV-9020 at Khajuri Chowk, two passengers i.e. husband and wife hired his auto for Zakir Nagar, Okhla; that he proceeded from the said place to Zakir Nagar near transformer where he dropped the said passengers; that after dropping them, as soon as he started to move for further, in the meantime, accused immediately sat in his running auto and started hurling abuse to him by saying " saale faad dunga, mera naam Rizwan Rizzi hai, mujhe don kehte hain"; that the accused asked him to drop him at Okhla Head and he refused, upon which, accused took out a knife and put the same on his neck and asked him to take him to Thokar No.3; that thereafter he drove the auto as per his instructions and reached at Thokar No.3; that at Thokar No.3, he requested the accused to get down from the auto but he refused; that accused told him to take the auto inside the gali and he refused to take his auto inside the gali; that accused had snatched his mobile phone and cash Rs. 780/-; that he had resisted the accused but he was carrying the knife; that thereafter accused fled away from the spot with his snatched money but he had thrown his mobile phone; that he picked up his mobile phone and started his auto and came to Okhla Vihar Metro; that he made a call at 100 number, upon which police SC No. 373/2021 State vs. Rizwan @ Rizzu Page No. 3 of 13 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.06.09 12:37:27 +0530 officials came there in police vehicles and he gave his complaint Ex. PW1/A; that he had also shown the place of incident to police officials who prepared site plan Ex. PW-1/B. The witness had correctly identified the accused in the witness box.
4A. He further deposed that after few days of incident, he visited PS Shaheen Bagh where IO had shown him the photo of accused and he had identified him as the person who had committed robbery with him on the day of incident; that the name of accused was revealed as Rizwan @ Rizzu as told by him in the auto; that he had told the description of the accused to IO that he was wearing the pant and t-shirt, having long beards and mustache, fair colour; that the accused was also in drunken condition and it appeared that he would kill him with the knife (aisa lag raha tha ki wo mujhe chaaku se maar dega ); that accused had also taken his search and as he had kept money in the auto box (galla), accused had taken money from there. The witness identified the knife Ex. P1 and the photograph of accused Ex. P2.
4B. During his cross examination, the witness denied the suggestion that the IO had told the name of accused as Rizwan and the name was not disclosed by the accused. He further deposed that he was shown one or two photographs in the police station; that the accused was already present in the police station; that his face was covered with the cloth; that the police officials had removed the cloth from the face of accused.
SC No. 373/2021 State vs. Rizwan @ Rizzu Page No. 4 of 13
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.06.09
12:37:36 +0530
5. PW2 ASI Shakeel Ahmed is the second Investigating Officer (IO) who deposed about the investigation conducted by him. He deposed that on 14.07.2021, he alongwith complainant and Ct. Dharampal reached at the spot where he prepared site plan at the instance of complainant Ex. PW-1/B; that they had searched for the accused and the case property but could not trace on that day; that he had recorded supplementary statement of complainant and first IO ASI Hardwari Lal; that on 15.07.2021, he alongwith Ct. Surendra reached at Thokar No. 3 near Doctor Apartment, Adul Fazal Enclave where they met one secret informer who informed about the presence of accused Rizwan @ Rizzu at Kanal Colony Gate in front of Balu Ka Tila, Kalindi Kunj Road; that in the meantime, he requested 3-4 public persons to join the investigation after informing them about the secret information but none agreed and left the spot without citing their names and addresses; that without wasting time, he alongwith Ct. Surender and secret informer proceeded towards the abovesaid place and on pointing of secret informer, accused Rizwan @ Rizzu was arrested vide arrest memo Ex. PW-2/A and his personal search was conducted vide memo Ex. PW2/B; that during search, one buttondar knife and cash Rs. 240/- was recovered from the right pocket of his wearing lower pant (consisting of one currency note of Rs. 200 denomination and four currency notes of Rs. 10 denomination);
5A. He further deposed that the recovered knife was having floral print on its handle and he prepared sketch of the knife Ex. PW-2/D; that said knife was kept in one transparent plastic box which was wrapped with the doctor tape and same was sealed with the seal of 'SA'; that he had SC No. 373/2021 State vs. Rizwan @ Rizzu Page No. 5 of 13 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.06.09 12:37:44 +0530 seized the said sealed pullanda of knife vide seizure memo Ex. PW2/E. 5B. The witness went on to depose that accused was kept in muffled face after his arrest and he was put behind the lock up at PS Sarita Vihar; that he had moved the TIP application (Ex. PW2/I) of accused on 16.07.2021; that on 04.08.2021, accused was produced before Ld. MM, Tihar Jail, however accused had refused to participate in judicial TIP. The witness had correctly identified the accused who was present through VC. During his cross examination, he admitted that the accused was arrested from a public place. The witness further deposed that the notice could not be given to the public persons to join the investigation and they were orally requested but they did not join; that the seal after its use was handed over to Ct. Surendra; that after 2-3 days of arrest of the accused, complainant came to police station where he was shown the photograph of the accused which was available in the dossier as the accused had previous criminal record; that he did not record the statement of custodian of dossier from he obtained the photograph of the accused; that photograph Ex.P2 was developed from the dossier and same was shown to the complainant.
6. PW3 Ct. Surendra is a witness to the investigation who deposed on the lines of PW2.
7. PW4 ASI Hardwari Lal is the first IO of the case who deposed that on the intervening night of 13 th or 14th July, 2021, on receipt of DD No. 5A and 8A, he alongwith Ct. Dharam Pal reached at Okhla Vihar SC No. 373/2021 State vs. Rizwan @ Rizzu Page No. 6 of 13 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.06.09 12:37:53 +0530 Metro Station, where he did not find complainant and he had conversation with complainant over phone and came to know that he had gone to his house; that thereafter he instructed the complainant to visit PS who told that he will visit the PS in the morning; that complainant Arbaj reached at police station and his statement was recorded; that he prepared rukka and handed over to duty officer for registration of FIR; that further investigation was assigned to ASI Shakeel i.e. PW2.
8. Record transpires that during course of trial, accused admitted certain documents of prosecution i.e. registration of FIR alongwith certificate under section 65B of the Indian Evidence Act as Ex.A1 (colly), TIP proceedings as Ex. A2, DD No. 5A and 8A dated 14.07.2021 as Ex. A3 (colly) and PCR call form as Ex. A4. Therefore, said documents can be read in evidence without formal proof of same in terms of section 294 CrPC.
9. On conclusion of PE, statement of accused u/s 313 CrPC was recorded, wherein he claimed to be falsely implicated. Accused chose not to lead any defence evidence in his favour.
10. Heard. Record perused.
11. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the SC No. 373/2021 State vs. Rizwan @ Rizzu Page No. 7 of 13 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.06.09 12:38:00 +0530 prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
12. Ld. Addl. PP for the State vehemently argued that in view of consistent testimony of complainant and since he has correctly identified the accused, the case of prosecution has got proved beyond all reasonable doubt. The submissions of Ld. Addl. PP appear to carry a lot of force at first glance, however the same loose its sheen on closer scrutiny of the facts in the instant case. It has come on record in the cross examination of PW2 that the photograph of the accused Ex.P2 was shown to the witness after 2-3 days after his arrest. The complainant i.e. PW1 has also deposed in no unclear terms that after few days of incident, he visited the police station where IO had shown him the photograph of accused and he identified him as the concerned robber.
13. The date of arrest of accused in the present case is 15.07.2021, therefore it is evident that the photograph of the accused was shown to the witness by the investigating officer 2-3 days after his arrest i.e. around 17 th or 18th July, 2021 i.e. much prior to 30.07.2021 on which date, his Test Identification Proceedings were fixed by Ld. MM and which came to be concluded on 04.08.2021. Though accused had refused to participate in the test identification proceedings on the ground that his photograph was shown to the witness, however in my considered view, the said refusal on the part of accused was justified and neither any adverse inference can be drawn against him nor such refusal can be used against the accused for any other purpose. Reliance is placed upon in case titled as "AIR 2007 SC SC No. 373/2021 State vs. Rizwan @ Rizzu Page No. 8 of 13 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.06.09 12:38:17 +0530 2400 State of MP v. Chamru @ Bhagwandas etc., wherein Hon'ble Apex Court while affirming the order of acquittal passed by High Court in a case u/s 302/307/324 IPC held as under:-"
"10. We find that it is not merely a case of non-mention of the names. Undisputedly, the photographs of accused Chamru were shown to two of the child witnesses before the test identification parade. That took away the effect of the test identification parade. Learned counsel for the appellant has referred to the evidence of PW3 to contend that she was not shown the photographs. Even a bare perusal of her evidence in court shows that she was not a credible witness and was tutored. She has categorically stated that she knew the accused by name. As noted above, her evidence also shows that she was tutored........."
14. It is the settled law that a conviction can be based on the dock identification of accused without corroboration. However, court have been cautioned not to do so as a rule of prudence. Identification of an accused who is stranger to the victim for the first time in the court is a weak evidence and should not be relied upon without corroboration in the form of earlier identification proceedings. Reliance is placed upon in case tilted as "Vaikuntam v. State of A.P. 1960, Cri. IJ.1681, SC", "State v. V.C.Shukla AIR 1980 SC 1382", "George v. State of Kerala 1998 (2) JCC 1927" and "Dana Yadav @ Dahu and others v. State of Bihar(2002) 7 SCC 295". However, in the instant case, the test identification proceedings were 'farce' as admittedly the photograph of the accused was shown to the witness prior to the test identification proceedings.
15. No explanation is coming forth as to why IO chose to shown SC No. 373/2021 State vs. Rizwan @ Rizzu Page No. 9 of 13 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.06.09 12:38:25 +0530 the photograph of the accused to the complainant prior to his test identification proceedings that too when former had moved the application for said purpose on 16.07.2021 itself. Further, though the IO claims that the photograph Ex.P2 was developed from the dossier, however a cursory look at the said photograph reveals that same does not appear to have been developed from the dossier as the accused therein (in photograph Ex. P2) is not holding any name plate and other particulars of his identification which is otherwise held by such accused in their dossier. Seen in the light of aforesaid circumstance, the version of accused that his photograph was taken in the police station looks highly probable.
16. Further, during cross examination of PW1, he deposed that accused was already present in the police station, however his face was covered with the cloth and police official had removed cloth from his face. The said version of the witness looks mysterious as no explanation is forthcoming on the part of prosecution as to under what circumstances, the accused was shown to the witness more so when at no point of time, the police custody of the accused was taken by the investigating officer. From the sequence of events as put forth by prosecution, the complainant had no occasion to see the accused in the police station and therefore it appears that either the witness did not come with full truth before the court or the sequence of event as put forth by prosecution is not the correct one.
17. Furthermore, as per PW1, he was robbed of Rs. 780/- and his mobile phone by accused at first instance, however thereafter, the said mobile phone was thrown at him by the accused and latter fled away from SC No. 373/2021 State vs. Rizwan @ Rizzu Page No. 10 of 13 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.06.09 12:38:41 +0530 the spot. In my considered view, it looks highly improbable that after robbing a person of his mobile phone and cash of Rs. 780/-, a robber would be content just with a paltry sum of Rs. 780/- and would leave a relatively expensive article i.e. mobile phone (vis a vis the cash) at the spot for no reasons whatsoever.
18. Further, during examination of PW1, he identified the currency (cash amount of Rs. 240/-) allegedly recovered from accused as the part of the robbed amount. However, it is strange that in the absence of any specific identification mark, the witness was able to identify the recovered currency as the one which belonged to him. On a specific query by this court, the witness chose to give an evasive answer, thereby raising serious doubt about his version.
19. To summarize, the testimony of complainant is inconsistent and not of sterling quality, dock identification of accused has not been corroborated, the photograph of the accused was shown to the complainant much prior to test identification proceedings. All the said factors combined together, puncture the case of prosecution beyond repair and therefore accused deserves to be acquitted. Accordingly, accused Rizwan @ Rizzu stands acquitted of the charges under section 392/397 IPC leveled against him.
20. Now, to the charge u/s 25 Arms Act: As per the prosecution, a button actuated knife was recovered from the possession of accused at the time of his arrest. For proving the said charge, the prosecution has relied SC No. 373/2021 State vs. Rizwan @ Rizzu Page No. 11 of 13 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.06.09 12:38:50 +0530 upon the testimony of PW2 and PW3 who are allegedly the witnesses to the said recovery.
21. However, in the instant case, as per PW2, the seal after use was handed over to Ct. Surendra who was member of investigating team which had apprehended the accused. Therefore, it is clear that the seal was not given to any independent public person after its use. Therefore tampering with case property in such a scenario cannot be ruled out. In the judgment of Ramji Singh Vs. State of Haryana 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court held in Para 7 as:-
"The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out".
22. In Rajesh Jagdamba Avasthi Vs. State of Goa (2005) 9 SCC 773, in para 15 of the judgment in this regard the Hon'ble Supreme Court held as under:
"15 ....... In these circumstances there is justification in the argument that since the seal as well as the packets remained in the custody of the same person, there was every possibility of the seized substance being tempered with, and that is the only hypothesis on which the discrepancy in weight can be explained. The least that can be said in the facts of the case is that there is serious doubt about the truthfulness of the prosecution case".
23. Further, as per PW2, the public persons were orally requested SC No. 373/2021 State vs. Rizwan @ Rizzu Page No. 12 of 13 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.06.09 12:39:06 +0530 to join the investigation but none of them agreed. However, no written notice was served upon them to join the proceedings in the present case or to face action u/s 187 IPC. Therefore it is clear that sincere efforts were not made to join independent witnesses despite their availability which causes a serious dent in the story of the prosecution. The reliance is placed on Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Roop Chand Vs. The State of Haryana 199 (1) C.L.R. 69 and Sadhu Singh Vs. State of Punjab 1997 (3) Crime 55.
24. In view of the aforesaid discussion, I am of the considered view that the recovery of the knife from the accused becomes doubtful and he deserves benefit of doubt on this count as well. Accordingly, accused Rizwan @ Rizzu stands acquitted of charge u/s 25 Arms Act also. The case property be disposed off/ destroyed after the expiry of the period of appeal as per rules.
25. File be consigned to record room after due compliance.
Digitally signed by ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.06.09
12:39:13 +0530
Announced in the open (ANUJ AGRAWAL)
Court on 9th June, 2022 Additional Sessions Judge-05,
South East, Saket Courts, New Delhi
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