Delhi District Court
State vs . Ikrar & Ors. on 11 March, 2014
IN THE COURT OF Ms. SAVITRI:
CHIEF METROPOLITAN MAGISTRATE, SHAHDARA,
KARKARDOOMA COURTS, DELHI
Unique Case ID No. : 02402R0313452006
State Vs. Ikrar & Ors.
FIR No. : 153/06
PS : Vivek Vihar
U/s. 392/411/34 IPC
Date of institution: 18.06.2006
Judgment Reserved on: 10.03.2014
Date of Judgment: 11.03.2014
a) Serial No. of the case 02402R0313452006
b) Date of commission 20.4.2006
of the offence
c) Name of the complainant Sh. Sukhlal
d) Name of the accused person, 1. Ikrar S/o Israr
and his parentage and R/o H. No.81, Pooja Colony,
address. Kidwai Nagar, Loni, Ghaziabad
2. Shakir S/o Ismail
R/o 20 ft Road, prem Nagar,
Loni, Ghaziabad, UP
3. Wasim S/o Salim
R/o Pavi Gate near Sunheri
Masjid, Loni, Ghaziabad, UP
FIR No.153/06 PS Vivek Vihar Page 1 of 11
e) Offence complained or U/s. 392/411/34 IPC
proved
f) Plea of the accused Plead not guilty and claimed trial
g) The final order Convicted u/s. 392/34 IPC
Acquitted u/s. 411/34 IPC
h) Date of such order 11.3.2014
JUDGMENT
1. Challan was filed on 18.6.2006 on the basis of FIR u/s. 392/411/34 IPC on the statement of complainant Sukhlal. He has stated in the tehrir that he was a retired government servant. On 20.4.06, he alongwith his wife Mukhtiari Devi was returning back from Bhogal Road, Jangpura, Delhi having purchased a gold ring and ear tops for his wife from Niranjan Lal Jagdish Prasad Jain Jeweller. The jeweller had given him a purse mentioning the name, address and number of jeweller. In this purse he had kept receipt of jewellery, his Icard issued by Himalaya Marketing and cash of Rs.6,000/ (12 notes in denomination of Rs.500/ each). He had kept this in a briefcase/suitcase. When the couple reached near Gajipur Chowk to go to Sunder Nagri, both started waiting for a conveyance. At about 8.20 p.m. one TSR No. DL1RG5780 being driven by a young man came near them and called for passenger @ Rs.10/ per passenger and asked where the couple wanted to go. Complainant told him that they wanted to go to Sunder Nagri. Driver demanded Rs.20/ for two passengers and asked them to sit on FIR No.153/06 PS Vivek Vihar Page 2 of 11 back seat. On the back seat already three young men were sitting. At the instance of driver, one of them sat with the driver and the other one made the third person sit on his lap. The complainant sat alongwith his wife inside the auto. His wife was sitting in the middle and she was holding the briefcase. When the TSR moved little ahead after crossing the Gajipur the TSR driver snatched briefcase from hand of Mukhtiari Devi and gave it to the person sitting at back and said "Piche Rakh Do". At about 8.35 p.m. when the TSR reached near the petrol pump, his wife nudged him and told him that those persons had opened the briefcase and were taking out some articles. When the complainant tried to stop them, the accused said "Agar Jyada Bolega To Hamare Pass Hathiar Bhi Hai". After this when the TSR was slow on account of slope of flyover, the complainant raised alarm. Immediately accused Ikrar gave the money he had taken out of the purse kept in the briefcase of complainant, to the auto driver and the driver in turn gave the same to the person sitting on the back seat and tried to run leaving the TSR. In the meantime one policeman namely Anurag who was standing nearby chased them. Complainant caught hold of Ikrar (Maine Ikrar Se Gutham Gutha Ki). Ikrar was apprehended with the help of police and public and he threw the purse, two wrist watches and receipt of payment of jewellery and Icard of complainant on footpath. The same was lifted from footpath by the complainant and he handed over the accused Ikrar to the FIR No.153/06 PS Vivek Vihar Page 3 of 11 police. Policeman Anurag called PCR and local police also came. The complainant stated that he can identify the other persons who had run away. Ikrar was beaten by public when he was apprehended. After registration of the case, the case property was seized and later on released on superdari. Accused persons Shakir and Wasim had disclosed about their involvement in commission of offence in the present case when they were apprehended by police in some other case. Accordingly they were arrested in the present matter. They refused for TIP. After completion of investigation, challan was filed against accused persons.
2. After appearance of accused persons, Sec.207 Cr.PC was complied with. Charge was framed against accused Ikrar and Wasim u/s. 411 IPC on 21.7.2006 as note of Rs.500/ each was recovered from them. All the three accused were charged u/s. 392 IPC additionally. They pleaded not guilty and claimed trial.
3. To prove its case, prosecution examined twelve witnesses.
4. Complainant Sukhlal has been examined as PW1. In his evidence he reiterated his statement. He has proved his signatures on seizure memo of auto and the purse containing Icard, two wrist watches, purchase slip of jewellery articles. He also proved his signatures on arrest memo and personal search memo of accused Ikrar. He identified all the three accused persons and all the seized articles were also proved by him as Ex.P1 to P5. FIR No.153/06 PS Vivek Vihar Page 4 of 11 In his crossexamination by Ld. Counsel for accused Wasim, he stated that at the time when the accused persons tried to open his briefcase, the briefcase was not locked. He denied the suggestion that accused persons were not involved in this case. During the crossexamination he stated that accused Wasim was driving the auto. In his crossexamination by Ld. Counsel for remaining accused i.e. Shakir and Ikrar which was allowed after filing the application u/s. 311 Cr.PC has been moved, he submitted that the accused persons had not threatened them. He further denied the suggestion that nobody had taken out the articles from briefcase and the articles had been fallen because the lock of the briefcase was not in working condition. He further stated that he could not say as to who was driving the auto and he could not see as to who gave Rs.6000/ to whom. He further stated that he did not see any of the accused taking out articles from his briefcase.
5. PW2 Mukhtiyari is the wife of complainant. Her evidence is also on the lines of tehrir. She has identified all the three accused persons. In her crossexamination by Ld. Counsel for accused Wasim she stated that accused Wasim was driving the TSR. She stated that all the accused persons including Wasim threatened them to sit quietly and accused Ikrar opened the briefcase and the accused Ikrar (correctly identified by the witness) was apprehended on the spot. She was crossexamined by Ld. Counsel for other FIR No.153/06 PS Vivek Vihar Page 5 of 11 accused namely Shakir and Ikrar which was allowed after the application u/s. 311 Cr.PC had been moved. She also stated that the lock of suitcase was not in working condition. She stated that she had seen the accused Ikrar taking out articles from the briefcase and she identified him. Both the witnesses have stated that all the writing work was done by the police at police station. She denied the suggestion that because the lock was not working the suitcase/briefcase opened on its own and none of the accused persons committed the offence (it is a matter of common prudence that if a person has kept valuables in in briefcase or bag, the lock of which is not working properly he or she would be even more careful lest the valuable should fall). She denied the suggestion that she was deposing falsely.
6. PW3 Sukhdev Singh is the registered owner of the auto and he stated that he had given the auto to Nadeem on hire.
7. PW4 Nadeem Ahmed stated that he had taken the auto on hire from PW3 and accused Wasim was the driver of PW4 who used to drive this vehicle and he identified the same. He stated that at the time of incident, accused Wasim was driver on the auto.
8. PW5 is Ct. Saji T. He remained with the IO. He was not cross examined and accused Ikrar was arrested in his presence.
9. PW6 is HC Anurag. In his evidence he stated that he apprehended one of the accused with the help of the lady sitting in the auto i.e. FIR No.153/06 PS Vivek Vihar Page 6 of 11 Mukhtiyari as well as the complainant. He correctly identified the accused Ikrar. In his crossexamination by Ld. Counsel for Ikrar, the witness could not tell as to who was driving the auto. He denied the suggestion that accused was not apprehended on the spot and nothing was recovered. Witness was not crossexamined by Ld. Counsel for accused Shakir and Wasim.
10. PW7 is HC Kavinder. He is the IO of the case FIR No. 324/06 u/s. 25 Arms Act, PS Gokul Puri in which the accused Wasim made disclosure statement regarding his involvement in the present case. In cross examination by Ld. Counsel for accused persons he admitted that no recovery of present case was effected in his presence.
11. PW8 is HC Onkar Singh. He is the IO of case FIR No. 325/06 u/s. 25 Arms Act, PS Gokul Puri where accused Shakir made disclosure statement regarding commission of offence in the present case. He also admitted in his crossexamination that nothing related to the present case was recovered from Shakir in his presence.
12. PW9 SI Limji Bhai is the duty officer who registered the FIR.
13. PW10 is W/ASI Anita. She has proved DD No.9A regarding disclosure of the accused persons namely Wasim and Shakir during their custody u/s. 25 Arms Act in FIR No. 324/06 and 325/06 relating to the present case.
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14. PW11 SI Yadram is IO of the present case. In his evidence he had given the details of the investigation conducted by him and he proved the documents relating to the investigation of the present case. This witness refreshed his memory after going through the record. He also identified accused Wasim and Shakir and had stated that accused Wasim and Shakir who made disclosure statement while in custody in some other case took him to their houses and got recovered Rs.500/ each which belonged to the complainant. The MHC(M) produced the envelops containing the currency notes and the same had been identified by the witness. In his cross examination by Ld. Defence Counsel, he had stated that he wrote the statement of complainant on spot and complainant had handed over him the articles thrown by the accused on footpath. He denied the suggestion that no writing work was done at the spot. (Whereas both the complainant and his wife stated that all the writing work was done at police station). He denied the suggestion that currency note of Rs.500/ were not recovered from house of accused Wasim and Shakir. He denied the suggestion that accused Wasim and Shakir were falsely implicated in collusion with police officials of PS Gokul Puri. He admitted that he had not obtained signatures of any neighbours on recovery memo of currency notes allegedly recovered from the houses of accused Wasim and Shakir and did not put any identification mark on the same. He denied the suggestion that complainant had told him FIR No.153/06 PS Vivek Vihar Page 8 of 11 that the articles allegedly robbed by the accused persons had fallen down on the footpath due to failure of lock of suitcase. He denied the suggestion that nothing was recovered from accused persons.
15. PW12 is Sh. G.N. Pandey, Ld. Duty MM at Tihar Jail Complex. He had proved the record of TIP proceedings of both the accused Shakir and Wasim. Both accused refused to participate in TIP. He was not cross examined.
16. After conclusion of entire PE, SA of the accused persons were recorded wherein all the incriminating material was put to them. They denied the same and stated that they were innocent and falsely implicated in the present case and they did not commit any offence. They did not lead any DE.
17. I have heard arguments on behalf of all the accused persons and Ld. APP. I have gone through the entire case file.
18. Both the public witnesses as well as the police witnesses have correctly identified all the accused persons. The complainant and his wife has no motive to falsely implicate the accused persons as they did not even know them prior to the incident and there is no enmity between the complainant couple and the accused persons. The accused persons had threatened them and forced them to keep quiet. They all in furtherance of their common intention had taken out the articles of complainant and his FIR No.153/06 PS Vivek Vihar Page 9 of 11 wife which were purchased by them with their hard earned money. The evidence of two public witnesses cannot be faulted except for some minor contradictions in the evidence of complainant Sukhlal (as he mentioned the wrong name as the driver of auto in his crossexamination and further stated that he was not threatened by the accused persons). Their evidence has been largely consistent.
19. In this light I hold that the prosecution has been able to prove its case against the accused persons beyond reasonable doubt. I hold that accused Wasim was driver of the TSR in which the offence was committed by the accused persons. This stands proved by the evidence of PW4 Nadeem. The fact that the briefcase was not in working condition does not help the accused; in view of their conduct as they had threatened the complainant and his wife to keep quiet and forcibly robbed them. The defence taken by accused that the articles had fallen down on footpath because the lock of briefcase was not in working condition is not reliable.
20. At the same time, I am not satisfied regarding the recovery of Rs. 500/ each from accused Shakir and Wasim as firstly the complainant has not given any description such as number of the currency notes etc. and also has not disclosed that he had put any mark for the identification of the notes. Therefore, argument of Ld. Counsel for accused that the notes have been planted upon the accused persons is correct. Therefore, I hold all the FIR No.153/06 PS Vivek Vihar Page 10 of 11 accused persons guilty for offence u/s. 392/34 IPC and Ikrar and Wasim are acquitted u/s. 411 Cr.PC.
21. Let they be heard on sentence.
Announced in Open Court (SAVITRI)
today on 11.03.2014 Chief Metropolitan Magistrate
Shahdara, Delhi
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