Delhi District Court
State vs Nadeem Etc on 11 October, 2023
IN THE COURT OF SH. SANJAY SHARMA-II : DJ (COMMERCIAL-11)
(CENTRAL): TIS HAZARI COURTS, DELHI
SC No. : 28384/2016
FIR No. : 55/2013
Under Section : 392/397/411 IPC
Police Station : Chandni Mahal
CNR No. : DLCT01-001774-2013
State Versus (1) Nadeem
S/o Mr. Mairajuddin
R/o 919, Gali Mochiyan
Haveli Azam Khan, Jama Masjid
Delhi
(2) Abdul Salam @ Wasim @
Tiggi
S/o Mr. Mohd. Aslam
R/o B-315, Gali No. 5, Mandawali
Laxmi Nagar, Delhi
(3) Kuldeep (Expired)
S/o Sh. Gopal Dass
R/o H. No. 1545, Gali Boriyan
Bazar Sita Ram, Delhi
Date of Institution : 15.07.2013
Date of Arguments : 18.07.2023
Date of Judgment : 11.10.2023
JUDGMENT
INTRODUCTION:
1. The case of the prosecution is that on 14.04.2013 at about 02.30 a.m. near Durga Sweets, Bazar Chitli Qabar, Chandni Mahal, Delhi, within jurisdiction of PS Chandni Mahal, the accused persons, in furtherance of their common intention, robbed an amount of Rs. 10,000/-, two mobile phones make Nokia 3110 black colour and Ping silver colour from Mohd.
Kasim (In short 'the complainant'). Thus, the accused persons are prosecuted for offence under Section 392 read with Section 34 of 'The Indian Penal Code, 1860' (In short 'IPC').
FIR No. 55/2013 State vs. Nadeem & Anr. Page No. 1 of 33
2. The accused, namely, Abdul Salam @ Wasim @ Tiggi used a deadly weapon i.e. buttondar knife at the time of committing robbery which is punishable with minimum imprisonment of 7 years, as provided under Section 397 IPC.
3. It is further case of the prosecution that the accused, namely, Abdul Salam @ Wasim @ Tiggi was in conscious possession of a buttondar knife in breach of Notification dated 17.02.1979 issued by Delhi Administration. Thus, he is prosecuted for offence under Section 25 of 'The Arms Act, 1959'.
4. It is further case of the prosecution that robbed mobile phone make Ping silver colour was recovered from the accused, namely, Abdul Salam @ Wasim @ Tiggi. Thus, he is prosecuted for offence under Section 411 IPC.
5. It is further case of the prosecution that robbed mobile phone make Nokia 3110 black colour and one wad of bank notes in the denomination of Rs. 20/- were recovered from the accused, namely, Nadeem. Thus, he is prosecuted for offence under Section 411 IPC.
RECEIPT OF PCR CALL:
6. On 14.04.2013 at 02.56 a.m., PS Chandni Mahal received a PCR call, through wireless, whereby the caller made call from mobile No. 9899522748 that 4-5 boys assaulted him and robbed an amount of Rs. 50,000/- from him in front of Durga Halwai, Suiwalan, Chandni Mahal while he was returning from work and they ran away towards Kala Mahal, vide DD No. 6A, and the said call was assigned to PW-5 SI Balwant Singh, through telephone, for appropriate action.
FIR No. 55/2013 State vs. Nadeem & Anr. Page No. 2 of 33 TEHRIR:
7. PW-5 SI Balwant Singh alongwith PW-7 Ct. Rajesh reached at Durga Sweets, Chitli Qabar, Chandni Mahal, Delhi where the complainant met him. He recorded statement of the complainant Ex.PW2/A, as under:
"Statement of Mohd. Kasim S/o Mr. Mohd. Hanif R/o H. No. 732, Suiwalan, Chandni Mahal. Age 19 years. Mobile No. 9899522742.
Stated that I am residing alongwith my family at the aforesaid address. I am doing work of making cardboard boxes with my relative, namely, Shakir. On 13-14.04.2013 at about 02.30 a.m., I was going to my house from Kala Mahal after finishing my work. I was carrying Rs. 10,000/- comprising two wads of bank notes in the denomination of Rs. 20/-, one bank note of Rs. 1,000/- and 10 bank notes of Rs. 500/-, which were kept in the factory. After 5-7 minutes, when I reached near Durga Sweets, three boys came on a red colour Pulsar motorcycle from the side of Chitli Qabar and stopped motorcycle near me. They stationed their motorcycle and alighted from the said motorcycle. The said three boys surrounded me. One of them taken out a buttondar knife and opened it and kept it on my neck. One of the said boys caught my both hands. The said three boys asked me to handover to them whatever I was carrying, otherwise, they would cut my neck. As I was reluctant, they assaulted me. The third boy taken out an amount of Rs. 10,000/- from right pocket of my trousers. The boy, who had caught my hands, had taken out two mobile phones make Nokia 3310 black colour and Ping silver colour from my trousers. In Ping silver colour mobile, there is a SIM No. 9250626053. While assaulting and robbing me, the boy who was carrying knife stated that his name is Tiggi and if I disclosed the incident to anyone, he would see me. The said three boys started their motorcycle and ran away from there alongwith my money and mobile phones while threatening me. I had noted registration number of the motorcycle as 'DL 7S AH 5296' on my hand. The age of the boy, who was carrying knife, is around 24-25 years, fair complexion and 5'6" height. The boy, who caught my hand, is around 25 years, fair complexion and 5'6" height. They boy, who had taken out amount from my pocket, is around 26-27 years, brown complexion, round face and 5'9" height FIR No. 55/2013 State vs. Nadeem & Anr. Page No. 3 of 33 The said three boys assaulted and robbed my amount and mobile phones after placing knife on my neck. Legal action be taken against them. I have not sustained any visible injury. I do not want my medical examination. I can identify the said three boys, if they come in front of me. You have recorded my statement. I have heard it. I have understood it. It is correct."
RUKKA:
8. On 14.04.2013 at about 04.40 a.m., PW-5 SI Balwant Singh prepared rukka Ex.PW5/A for registration of case under Section 392/397/34 IPC and handed it over to PW-7 Ct. Rajesh for being taken to PS Chandni Mahal. REGISTRATION OF FIR:
9. On 14.04.2013 at about 04.50 a.m., PW-6 HC Shri Gopal, Duty Officer, PS Chandni Mahal registered FIR No. 55/2013 under Section 392/397/34 IPC Ex.PW6/A. He assigned further investigation to PW-5 SI Balwant Singh. INVESTIGATION:
10. During investigation, PW-5 SI Balwant Singh prepared site plan of the place of incident Ex.PW2/P at the instance of the complainant.
11. On receipt of secret information, PW-5 SI Balwant Singh alongwith PW-3 Ct. Mahesh, PW-4 Ct. Brahmjeet, PW-7 Ct. Rajesh and the complainant reached at Faiz Bazar. The complainant identified one boy who was standing at the corner of Faiz Bazar, as the boy who had assaulted him and robbed his amount and mobile phones. He apprehended the said boy. On enquiry, the name of the said boy revealed as 'Nadeem S/o Mr. Mairajuddin R/o H. No. 919, Gali Mochiyan, Haveli Azam Khan, Jama Masjid, Delhi'.
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12. PW-5 SI Balwant Singh conducted search of the accused Nadeem. He recovered a wad of bank notes in the denomination of Rs. 20/- from right pocket and mobile phone Nokia 3110 from left pocket of the accused Nadeem. The complainant identified the recovered amount and mobile phone as the robbed amount and mobile phone. He prepared separate parcels of the said amount and mobile phone and sealed them with his seal having impression 'BS' and seized them, vide seizure memo Ex.PW2/B. He seized Pulsar motorcycle No. DL 7S AH 5296 from the accused Nadeem, vide seizure memo Ex.PW2/C.
13. On 14.04.2013 at about 06.15 a.m., PW-5 SI Balwant Singh arrested the accused Nadeem, vide arrest memo Ex.PW2/D.
14. At the instance of the accused Nadeem, PW-5 SI Balwant Singh arrested the accused Abdul Salam @ Wasim @ Tiggi (In short 'Tiggi') from H. No. 244/43, Gali No. 7, Talab Chowk, Mandawali, Delhi at 09.00 a.m. on 14.04.2013, vide arrest memo Ex.PW2/M. He recovered a buttondar knife and a mobile phone make Ping silver colour from him. He prepared a sketch of the said knife, vide sketch memo Ex.PW2/H. He prepared separate parcels of the said knife and mobile phone and sealed them with his seal having impression 'BS' and seized them, vide seizure memos Ex.PW2/J and Ex.PW2/K respectively. He prepared pointing out memos at the instance of the accused Nadeem and Tiggi, vide pointing out memos Ex.PW2/G and Ex.PW2/L respectively. He recorded disclosure statements of the accused Nadeem and Tiggi, vide disclosure statements Ex.PW2/F and Ex.PW2/O respectively.
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15. In their disclosure statements, the accused Nadeem and Tiggi disclosed involvement of the accused Kuldeep. However, they did not disclose his address.
16. PW-5 SI Balwant Singh produced the accused Nadeem and Tiggi before Jurisdictional Magistrate. He obtained police custody. At the instance of the accused Nadeem and Tiggi, he arrested the accused Kuldeep from Hamdard Chowk and recovered an amount of Rs. 1600/- from him. He kept the said amount in a cloth parcel and sealed it with his seal having impression 'BS' and seized it, vide seizure memo.
17. PW-5 SI Balwant Singh produced the accused Kuldeep before Jurisdictional Magistrate in muffled face. He filed an application for Test Identification Parade (TIP) of the accused Kuldeep. However, the accused Kuldeep refused to participate in Test Identification Parade (TIP). CHARGE-SHEET:
18. On conclusion of investigation, PW-5 SI Balwant Singh charge-sheeted the accused persons for offences under Section 392/397/411/34 IPC and 25/27 of 'The Arms Act, 1959'. COMMITTAL:
19. Vide order dated 11.07.2013, Jurisdictional Magistrate committed the case to the Court of Session. CHARGE:
20. Vide order dated 19.07.2013, the accused persons were charged for committing offence under Section 392/34 IPC. In addition, the accused Nadeem was charged for offence under Section 411 IPC. The accused Tiggi was charged for offences under Section 411 IPC, 25 of 'The Arms Act, 1959' and 397 IPC. They abjured their guilty and claimed trial.
FIR No. 55/2013 State vs. Nadeem & Anr. Page No. 6 of 33 ABATEMENT OF PROCEEDINGS QUA THE ACCUSED KULDEEP:
21. The accused Kuldeep expired on 03.01.2014 and proceedings qua him were abated, vide order dated 11.02.2014. TRIAL:
22. The prosecution examined 7 witnesses, as under:
The witnesses Description of the witnesses PW-1 Mohd. Shakir Employer of the complainant PW-2 Mohd. Kasim The complainant PW-3 Ct. Mahesh Recovery and arrest witness qua Nadeem and Tiggi PW-4 Ct. Brahmjeet Driver, Govt. Gypsy PW-5 SI Balwant Singh Investigating Officer PW-6 ASI Shri Gopal Duty Officer, PS Chandni Mahal PW-7 Ct. Rajesh Recovery and arrest witness qua Nadeem and Tiggi COURT WITNESS:
23. The Court examined Mr. Vijay Kumar, Dealing Clerk, Delhi Administration, Home Department, ITO, Delhi as CW-1. He proved Notification No. F. 13/203/78-Home Dated 17.02.1979 issued by Mr. Jaishree Raghuraman, Under Secretary, Home (G) Ex.CW1/A. EXAMINATION OF THE ACCUSED PERSONS:
24. Incriminating circumstances appearing in evidence were explained to the accused persons, as required under section 313 Cr.P.C. They denied each and every circumstance appearing in evidence against them. They stated that prosecution witnesses are false and interested witnesses. The accused Tiggi stated that nothing was recovered from his possession. They pleaded innocence and claimed false implication.
FIR No. 55/2013 State vs. Nadeem & Anr. Page No. 7 of 33 DEFENCE EVIDENCE:
25. The accused Nadeem examined his father as DW-1.
He stated that on 13.04.2013, SI Balwan Singh from PS Chandni Mahal came to his house and taken the accused Nadeem alongwith the motorcycle. He stated that earlier to that day, SI Balwan Singh had apprehended the accused Nadeem in some other case and released him after taking money from him. He stated that his son alongwith his friends was falsely implicated in this case.
APPEARANCE:
26. I have heard arguments of Mr. Amit Dabas, Ld. Addl. PP for the State, Mr. A. Khan, Advocate for the accused persons and Mr. Hukam Chand, Ld. Legal Aid Counsel for the accused persons and examined the evidence, oral and documentary and perused written arguments. CONTENTIONS OF THE PROSECUTION:
27. Ld. Addl. PP for the State contended that the complainant narrated the incident. He contended that the complainant identified the accused persons. He contended that the complainant described the incident. He contended that the complainant identified the accused Tiggi as the person who had placed a button actuated knife on his neck and threatened to kill him. He contended that the complainant had no enmity against the accused persons. He contended that the complainant had no reason to falsely implicate the accused persons. He contended that testimony of the complainant pertaining to availability of amount of Rs. 10,000/- with him is corroborated by his employer PW-1 Mohd. Shakir. He contended that evidence of the complainant is corroborated by the complaint Ex.PW2/A. FIR No. 55/2013 State vs. Nadeem & Anr. Page No. 8 of 33
28. Ld. Addl. PP for the State contended that the name of the accused Tiggi and registration number of the motorcycle are mentioned in the complaint Ex.PW2/A. He contended that there was no delay in recording of statement of the complainant and registration of FIR. He contended that evidence of the complainant is further corroborated by recovery of motorcycle No. DL 7S AH 5296 alongwith part of the robbed amount from the accused Nadeem soon after the incident. He contended that evidence of the complainant is further corroborated by recovery of knife and robbed mobile phones from the accused persons. He contended that the complainant turned hostile in his cross-
examination and this fact will have no bearing on his examination-in-chief. He contended that examination-in-chief of the complainant was recorded on 17.10.2014 and his cross- examination was recorded on 03.11.2015. He contended that the accused persons prevailed upon the complainant and forced him to turn hostile. He contended that there is no material contradiction, inconsistency or variation in the evidence of the prosecution witnesses. He contended that minor variations in time of departure from police station, time of arrest and time of arrival of the police officials would not have any significant impact on the case of the prosecution. He contended that the prosecution led credible evidence to prove that the accused persons alongwith the accused Kuldeep (since deceased) robbed an amount of Rs. 10,000/- and two mobile phones from the complainant. He contended that the prosecution proved that the accused Tiggi used a deadly weapon i.e. buttondar knife at the time of committing robbery. He contended that the prosecution proved the charges beyond reasonable doubt.
FIR No. 55/2013 State vs. Nadeem & Anr. Page No. 9 of 33 CONTENTIONS OF THE DEFENCE:
29. Mr. A. Khan, Ld. Counsel for the accused persons contended that the accused persons were falsely implicated in this case. He contended that the case of the prosecution is afflicted with major contradictions, inconsistencies and improvements rendering it not worthy of credence. He contended that in DD No. 6A, the complainant stated that 4-5 persons assaulted him and robbed an amount of Rs. 50,000/- from him.
He contended that neither name of Tiggi nor registration number of motorcycle is mentioned in DD No. 6A. He contended that there is no Call Detail Record (CDR) pertaining to PCR call. He contended that the prosecution has not produced PCR form pertaining to the said PCR call. He contended that PW-1 Mohd. Shakir did not state anything about strip of mint of Mysore on wad of Rs. 20/-. He contended that there is contradiction pertaining to availability of amount of Rs. 10,000/- with the complainant at the time of incident. He contended that seal on the parcel does not match with the seal affixed by PW-5 SI Balwant Singh. He contended that the complainant turned total hostile in his cross-examination on the point of identity and recoveries. He contended that the complainant did not identify the recovered articles as the articles robbed from him. He contended that there is no evidence that the complainant was having two mobile phones or he was using the said mobile phones. He contended that the prosecution did not get Test Identification Parade (TIP) of the accused persons conducted. He contended that when a witness makes two inconsistent statements, he is an unreliable witness. He relied upon judgment in Suraj Mal vs. State of Delhi, AIR 1979 SC 1408.
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30. Mr. Hukam Chand, Ld. Legal Aid Counsel for the accused persons highlighted contradictions and infirmities in the evidence of the prosecution witnesses. He contended that PW-5 SI Balwant Singh stated that he had called the complainant whereas PW-3 Ct. Mahesh stated that the complainant was found at Faiz Bazar. He contended that PW-3 Ct. Mahesh stated that PW-5 SI Balwant Singh briefed them at 07.00 - 08.00 a.m. He contended that according to arrest memo Ex.PW2/D, the accused Nadeem was arrested at 06.15 a.m. He contended that seizure memos Ex.PW2/B and Ex.PW2/C do not bear signatures of PW-3 Ct. Mahesh. He contended that PW-3 Ct. Mahesh stated that they left for Mandawali at about 10.00 - 11.00 a.m. whereas the time of arrest of the accused Tiggi is 09.00 a.m. He contended that PW-4 Ct. Brahmjeet has not stated anything regarding presence of PW-7 Ct. Rajesh. He contended that PW-4 Ct. Brahmjeet stated that they brought the accused Nadeem to police station at 03.30 a.m. whereas FIR was registered at 04.50 a.m. He contended that there is no public witness to search and seizure proceedings. He contended that there are material contradictions pertaining to arrest and recoveries from the accused Tiggi. He contended that there is no evidence as to how PW-5 SI Balwant Singh reached at house of the accused Tiggi in the absence of his address. He contended that there is non-compliance of provision of Section 100 Cr.P.C. He contended that there is no MLC regarding assault upon the complainant. He contended that seizure memos and other documents do not bear signatures of PW-3 Ct. Mahesh and PW-4 Ct. Brahmjeet. He contended that the prosecution failed to prove charges against the accused persons beyond reasonable doubt.
FIR No. 55/2013 State vs. Nadeem & Anr. Page No. 11 of 33 STATUTORY PROVISIONS:
31. Relevant statutory provisions are, as under:
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 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.
397. Robbery, or dacoity, with attempt to cause death or grievous hurt.- If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
FIR No. 55/2013 State vs. Nadeem & Anr. Page No. 12 of 33 JUDICIAL PRECEDENTS:
32. In Venu @ Venugopal & Ors. vs. State of Karnataka, (2008) 3 SCC 94, Hon'ble Supreme Court of India held as under:
"8. Section 392 IPC provides for punishment for robbery. The essential ingredients are as follows:
1. Accused committed theft.
2. Accused voluntarily caused or attempted to cause
(i) death, hurt or wrongful restraint;
(ii) fear of instant death, hurt or wrongful restraint.
3. He did either act for the end
(i) to commit theft;
(ii) while committing theft;
(iii) in carrying away or in the attempt to carry away property obtained by theft.
10. The provision defines robbery which is theft or extortion when caused with violence of death, hurt or wrongful restraint. When there is no theft committed, then as a natural corollary there cannot be robbery. Robbery is only an aggravated form of offence of theft or extortion. Aggravation is in the use of violence of death, hurt or restraint. Violence must be in course of theft and not subsequently. It is not necessary that violence actually should be committed but even attempt to commit it is enough."
33. In Ganesan vs. State Rep. by Station House Officer, 2021 SCC OnLine SC 1023, Hon'ble Supreme Court of India held, as under:
"47. The aforesaid view has been subsequently reiterated by this Court in the case of Dilawar Singh (Supra) and in paragraphs 19 to 21 it is observed and held as under:
"19. The essential ingredients of Section 397 IPC are as follows:
1. The accused committed robbery.
2. While committing robbery or dacoity
(i) the accused used deadly weapon
(ii) to cause grievous hurt to any person (iii) attempted to cause death or grievous hurt to any person.
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3. ''Offender'' refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It is only envisages the individuals liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision. But the other accused are not vicariously liable under that section for acts of the co-accused."
CONCEPT OF PROOF BEYOND REASONABLE DOUBT:
34. It is a cardinal principle of criminal jurisprudence that the burden of proof is always on the prosecution and the accused is presumed to be innocent unless proven guilty. While dealing with a criminal trial, the Court must not be oblivious of the most fundamental principle of criminal jurisprudence, which is, that the accused 'must be' and not merely 'may be' guilty before the Court proceeds to convict him. The mental distance between 'may be' and 'must be' is long and divides vague 'conjectures' from 'conclusions'.
MODE OF ASSESSMENT OF EVIDENCE:
35. In criminal cases, the Court cannot proceed to consider the evidence of the prosecution witnesses in a mechanical way. The broad features of the prosecution case, the probabilities and the normal course of human conduct of a prudent person are some of the factors which are always kept in mind while evaluating the merit of the case.
36. While appreciating the intrinsic worth of evidence, the Court must satisfy itself as to whether the evidence of the witness, if read in its entirety, has a ring of truth.
FIR No. 55/2013 State vs. Nadeem & Anr. Page No. 14 of 33 APPRECIATION OF EVIDENCE:
37. Appreciation of evidence is an onerous task. In order to appreciate the evidence, the Court can make use of principles for appreciation of evidence enunciated in judicial precedents.
38. In Balu Sudam Khalde and Another vs. State of Maharashtra, 2023 SCC OnLine SC 355, Hon'ble Supreme Court of India held, as under:
"25. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
"I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
FIR No. 55/2013 State vs. Nadeem & Anr. Page No. 15 of 33 IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
FIR No. 55/2013 State vs. Nadeem & Anr. Page No. 16 of 33 XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness."
39. In Munna Lal vs. State of Uttar Pradesh, 2023 SCC OnLine SC 80, Hon'ble Supreme Court of India delineated principles for appreciation of evidence, as under:
"28. Before embarking on the exercise of deciding the fate of these appellants, it would be apt to take note of certain principles relevant for a decision on these two appeals. Needless to observe, such principles have evolved over the years and crystallized into 'settled principles of law'. These are:
(a). Section 134 of Indian Evidence Act, 1872, enshrines the well-recognized maxim that evidence has to be weighed and not counted. In other words, it is the quality of evidence that matters and not the quantity. As a sequitur, even in a case of murder, it is not necessary to insist upon a plurality of witnesses and the oral evidence of a single witness, if found to be reliable and trustworthy, could lead to a conviction.
(b). Generally speaking, oral testimony may be classified into three categories, viz.:
(i) Wholly reliable;
(ii) Wholly unreliable;
(iii) Neither wholly reliable nor wholly unreliable.
The first two category of cases may not pose serious difficulty for the court in arriving at its conclusion(s).
FIR No. 55/2013 State vs. Nadeem & Anr. Page No. 17 of 33 However, in the third category of cases, the court has to be circumspect and look for corroboration of any material particulars by reliable testimony, direct or circumstantial, as a requirement of the rule of prudence.
(c). A defective investigation is not always fatal to the prosecution where ocular testimony is found credible and cogent. While in such a case the court has to be circumspect in evaluating the evidence, a faulty investigation cannot in all cases be a determinative factor to throw out a credible prosecution version.
(d). Non-examination of the Investigating Officer must result in prejudice to the accused; if no prejudice is caused, mere non-examination would not render the prosecution case fatal.
(e). Discrepancies do creep in, when a witness deposes in a natural manner after lapse of some time, and if such discrepancies are comparatively of a minor nature and do not go to the root of the prosecution story, then the same may not be given undue importance."
LAW ON CONTRADICTIONS AND DISCREPANCIES:
40. While appreciating the evidence, the Court has to take into consideration whether the contradictions / omissions are of such magnitude that they may materially affect the trial. Normally, omissions or contradictions which affect the basic structure of the prosecution case may be considered to be sufficient for giving benefit of doubt to the accused. When the contradictions are so serious and create doubt in the mind of the Court about the truthfulness of the statement, then such evidence is not safe to rely upon. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and the other witness also makes material improvements before the Court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. The discrepancies in the evidence of witnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence.
FIR No. 55/2013 State vs. Nadeem & Anr. Page No. 18 of 33
41. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that the prosecution proved its case beyond reasonable doubt. When the version given by the witness in the Court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so.
42. In Shyamal Ghosh vs. State of West Bengal, (2012) 7 SCC 646, Hon'ble Supreme Court held, as under:
"46.....Undoubtedly, some minor discrepancies or variations are traceable in the statements of these witnesses. But what the Court has to see is whether these variations are material and affect the case of the prosecution substantially. Every variation may not be enough to adversely affect the case of the prosecution."
43. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the Court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. In case contradictions are so material that the same go to the root of the case, materially affect the trial or core of prosecution case, Court has to form its opinion about credibility of the witnesses and find out as to whether their depositions inspire confidence. The Court must sift the chaff from the grain and find out the truth from the testimony of the witnesses. The evidence is to be considered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire confidence in the mind of the Court to accept the stated evidence.
FIR No. 55/2013 State vs. Nadeem & Anr. Page No. 19 of 33 ANALYSIS AND DISCUSSION:
44. PW-2 Mohd. Kasim is the complainant. The case was recorded on his statement Ex.PW2/A. He is also a witness to arrest and recoveries from the accused persons. He is a material witness. He deposed, as under:
"I am residing at above stated address and working with my relative namely Mohd. Sakir who is having work of card board box making at Kala Bhawan. In the intervening night of 13/14.04.2013 at about 2.30 a.m. after completing my work, I had left Kala Bhawan for my house. I was carrying Rs. 10,000/- of my factory containing two wads of Rs. 20/- denomination, one currency note of Rs. 1,000/- and ten currency note of Rs. 500/- in my pocket. When I reached near Durga Sweets, one red colour Pulsar motorcycle, on which three persons were riding came from the side of Chitli Qabar. They stopped the motorcycle in front of me and surrounded me. One person took out button actuated knife and put the knife on my neck, one person apprehended my hand from the back. They demanded money from me and when I refused, they had beaten me. Those three person took away my Rs. 10,000/- and two mobile phones of mine, one Nokia and another Ping silver colour mobile. The number of Ping silver colour mobile phone, which was in operation, I do not remember. One of the culprits who was having knife had threatened me that his name is Tiggi and if he disclosed things to anyone he will finish me. Thereafter, all three persons left on the motorcycle taking away my money and mobile phones. I had noted down the number of the motorcycle on my palm, which I do not remember now. I had not sustained any grievous injury, so I refused to get myself medically examined. Police arrived and had recorded my statement and I had signed the same. I identify my statement, the same is now Ex.PW2/A, bearing my signature at point A. I had given a true fact which had happened with me to the IO. Out of three, two accused persons are present today in the court (correctly identified by the witness). The third one is not present in the court today (accused Kuldeep has expired).
FIR No. 55/2013 State vs. Nadeem & Anr. Page No. 20 of 33 I had shown the spot to the IO. On 14.04.2013, I was called by the IO and reached at crossing Bairam Khan at about 5.45 a.m. and IO alongwith staff were present there. On my instance, accused Nadeem was apprehended and from his possession one wad of Rs. 20/- and one Nokia mobile was recovered, which I had identified and which was robbed by them. IO converted the mobile phone into parcel and affixed seal BS thereon. The seizure memo of currency note and mobile phone is now Ex.PW2/B, it bears my signature at point A. The Pulsar motorcycle was also taken into police possession, vide seizure memo Ex.PW2/C, bearing my signature at point A. This motorcycle was used at the time of robbery on which three accused had come. Accused Nadeem was arrested and his personal search memo was conducted. The arrest memo and personal search memo are now Ex.PW2/D and Ex.PW2/E respectively, both bears my signatures at point A. IO recorded the disclosure statement of accused Nadeem also which is now Ex.PW2/F, bearing my signature at point A. Accused Nadeem pointed out the place of occurrence and the pointing out memo is now Ex.PW2/G, bearing my signature at point A. Thereafter, accused took us to Talab Chowk and accused Abdul Salam @ Tiggi was apprehended and from him, one knife was recovered from his pocket. Accused Tiggi had put the knife on my neck. IO prepared the sketch of the knife, same is now Ex.PW2/H, bearing my signature at point A. IO converted the same into a parcel, sealed with the seal of BS and seized through seizure memo now Ex.PW2/J (I omitted), bearing my signature at point A. My robbed Ping silver coloured mobile phone was also recovered from accused Tiggi which was converted into a parcel, the same was sealed with seal of BS and seized through seizure memo now Ex.PW2/K, bearing my signature at point A. The pointing out memo qua accused Tiggi is Ex.PW2/L, bearing my signature at point A. Accused Tiggi was also arrested and his personal search was conducted. Arrest memo and personal search memo of accused Tiggi are now Ex.PW2/M and Ex.PW2/N respectively, bearing my signature at point A. IO had also recorded the disclosure statement of accused Tiggi, same is now Ex.PW2/O, bearing my signature at point A. The site plan is now Ex.PW2/P, bearing my signature at point A. My statement was recorded by the IO.
FIR No. 55/2013 State vs. Nadeem & Anr. Page No. 21 of 33 At this stage, Ld. Addl. PP for the state requested to put some leading question to the witness. Heard. Allowed.
It is correct that I was using no. 9250626053 in my Ping silver colour mobile phone and the motorcycle number on which the accused robbers had come was DL-7S-AH-5296. I had stated both these two numbers in my statement Ex.PW2/A."
(emphasis supplied)
45. At this juncture, it would be relevant to take note of examination and cross-examination of the complainant, recorded on 03.11.2015, as under:
"I cannot identify the articles which were seized by the police. (vol. no proceeding regarding seizure of any article was conducted in my presence). At this stage, MHC(M) produced one sealed parcel sealed with the seal of court. On opening the same, one wad of currency notes of Rs. 20/- is taken out and the same is shown to the witness but witness refuses to identify the same, as seized in his presence by the police.
MHC(M) produced two sealed parcels sealed with the seal of BS. On opening the same, two mobile phones are taken out and the same are shown to the witness but witness refuses to identify the same, as seized in his presence by the police.
At this stage, MHC(M) produced one sealed parcel sealed with the seal of BS. On opening the same, one knife is taken out and the same is shown to the witness but witness refuses to identify the same, as seized in his presence by the police.
On the point of identification of motorcycle, witness states that no motorcycle was recovered in his presence so he cannot identify any motorcycle. At this stage, Ld. Addl. PP seeks permission to cross examine the witness as he is deliberately not identifying the case property from his previous statement.
Heard. Allowed.
FIR No. 55/2013 State vs. Nadeem & Anr. Page No. 22 of 33 XXXX by Ld Addl. PP for the State.
It is wrong to suggest that the currency notes Ex.PX- 1, mobile phones Ex.PX-2 and PX-3, knife Ex.PX-4 and motorcycle bearing registration No. DL 7S AH 5296 (parked in the parking area of the court) were seized in my presence or that I am deposing falsely on the point of identification of the case property and deliberately, I am not identifying the same as I have been won over by the accused.
XXXX by Sh. A. Khan, Ld. Counsel for both the accused.
Police came at the spot between 2-2.30 am. My statement was recorded in the PS at about 2.45 am. I left the PS at about 3 am and went to my house. I did not go anywhere in search of the accused persons. I did not go to Nukkad Faiz Bazar with police in search of the accused. Accused Nadeem was not apprehended in my presence. It is correct that nothing was recovered from Nadeem in my presence. I had not gone anywhere along with police to the house of Abdul Salam @ Tiggi. It is correct that nothing was recovered from the house of Abdul Salam in my presence. No accused had put knife on my neck. The statement given by me today is correct and the statement recorded on 17.10.2014 is incorrect. No statement of any accused was recorded in my presence. It is correct that police never called me at Tiraha Bairam Khan. It is correct that Abdul Salam @ Tiggi never threatened me by saying that his name was Tiggi and he would finish him. Police took my signature on blank papers and also copy of the FIR. It is correct that I had not pointed out towards the spot. It is correct that no wad of currency notes of Rs. 20/- was recovered from the accused and also not any Nokia mobile was recovered from his possession. I had never identified the said articles at any point of time. It is correct that no motorcycle make Pulsar was recovered from accused Nadeem in my presence. It is correct that accused Nadeem and Abdul Salam @ Tiggi were not arrested in my presence. It is correct that Tiggi had not put any knife on my neck. It is correct that no silver colour Ping mobile phone was recovered from accused Tiggi nor any knife was recovered from his possession. It is correct that police did not prepare any pullanda in my presence. It is correct that police did not record the statement of Tiggi in my presence. Accused Nadeem and Abdul Salam @ Tiggi are not the same persons who had robbed me. I had given my statement in the court on 17.10.2014 at the instance of the IO.
FIR No. 55/2013 State vs. Nadeem & Anr. Page No. 23 of 33 At this stage, Ld. Addl. PP seeks permission to re- examine the witness as he is deposing contrary to his previous statement given in the court on 17.10.2014. Heard. Allowed.
It is correct that I did not state on 17.10.2014 before court that police had pressurized me to give statement on their instruction. It is wrong to suggest that I had participated in all the proceedings qua the recovery, seizure and arrest of the accused persons or that due to this reason my signatures are appearing on all the seizure memos and other memos. It is wrong to suggest that I am deposing falsely at the instance of the accused persons as I have been won over by them. It is wrong to suggest that accused Nadeem and Abdul Salam @ Tiggi are the same persons who had robbed me along with their associates. XXXX by Sh. A. Khan, Ld. Counsel for both the accused.
It is correct that police had taken my signatures on blank papers."
46. It is seen that examination-in-chief of the complainant was recorded on 17.10.2014. His further examination-in-chief and cross-examination were recorded on 03.11.2015 i.e. after more than one year. The complainant turned volte face in his evidence recorded on 03.11.2015. The complainant did not make any grievance before the Court on 17.10.2014 that Investigating Officer pressurized him to make the statement.
47. In Rajesh Yadav vs. State of U.P., (2022) 12 SCC 200, Hon'ble Supreme Court of India delineated principles to deal with evidence of a hostile witness, as under:
"22. The expression "hostile witness" does not find a place in the Indian Evidence Act. It is coined to mean testimony of a witness turning to depose in favour of the opposite party. We must bear it in mind that a witness may depose in favour of a party in whose favour it is meant to be giving through his chief- examination, while later on change his view in favour of the opposite side.
FIR No. 55/2013 State vs. Nadeem & Anr. Page No. 24 of 33 Similarly, there would be cases where a witness does not support the case of the party starting from chief- examination itself. This classification has to be borne in mind by the Court. With respect to the first category, the Court is not denuded of its power to make an appropriate assessment of the evidence rendered by such a witness. Even a chief-examination could be termed as evidence. Such evidence would become complete after the cross-examination. Once evidence is completed, the said testimony as a whole is meant for the court to assess and appreciate qua a fact. Therefore, not only the specific part in which a witness has turned hostile but the circumstances under which it happened can also be considered, particularly in a situation where the chief- examination was completed and there are circumstances indicating the reasons behind the subsequent statement, which could be deciphered by the court. It is well within the powers of the court to make an assessment, being a matter before it and come to the correct conclusion."
48. Therefore, the evidence of an hostile witness is not totally effaced or washed off the record altogether. Such evidence can be accepted to the extent it is consistent with the case of the prosecution. The evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are consistent with the case of the prosecution can be considered.
49. In view of the period of time and the manner in which the complainant became hostile, the Court is relying upon examination-in-chief of the complainant.
50. The issue before the Court is whether the evidence given by the complainant in his examination-in-chief inspires confidence and it is reliable, trustworthy and credible.
51. Further issue before the Court is whether there are material contradictions, inconsistencies or omissions in the prosecution evidence which can render the case of the prosecution not worthy of acceptance.
FIR No. 55/2013 State vs. Nadeem & Anr. Page No. 25 of 33
52. In Vadivelu Thevar & Anr. vs. State of Madras, AIR 1957 SC 614, Hon'ble Supreme Court of India held, as under:
"11.....Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial....."
ANALYSIS AND FINDINGS:
53. On critical examination of the prosecution evidence, it emerged that the prosecution evidence is replete with equivocations, prevarications and incompatibilities.
54. The complainant, in complaint Ex.PW2/A, stated that he was carrying an amount of Rs. 10,000/-, which was kept in his factory. PW-1 Mohd. Shakir stated that he is employer of the complainant and the complainant had taken an amount of Rs.
10,000/- from him for certain important work. However, the complainant, in his evidence, has not stated that PW-1 Mohd. Shakir had given him the said amount of Rs. 10,000/- or that the said amount was kept in his factory. He merely stated that he was carrying an amount of Rs. 10,000/- of his factory. Therefore, the case of the prosecution pertaining to the fact that the complainant was carrying an amount of Rs. 10,000/- is not consistent.
FIR No. 55/2013 State vs. Nadeem & Anr. Page No. 26 of 33
55. According to the complainant, the accused persons robbed two mobile phones i.e. Nokia 3110 and Ping from him. However, the prosecution has not filed any invoice pertaining to the said mobile phones.
56. According to the complainant, he was using SIM No. 9250626053 in mobile phone make Ping. However, Investigating Officer has neither collected Customer Application Form (CAF) and Call Detail Records (CDR) in order to show that the complainant was using the said mobile number on Ping mobile phone.
57. On 14.04.2013 at 02.56 a.m., a PCR call was received from mobile No. 9899522748 whereby caller informed that 4-5 boys assaulted and robbed an amount of Rs. 50,000/- from him in front of Durga Sweets, Suiwalan, Chandni Mahal. The complainant has neither stated, in complaint Ex.PW2/A, and evidence that he made call at 100. There is no investigation as to who had made call at 100. The case of the prosecution, as narrated by the complainant, is not corresponding to the incident mentioned in DD No. 6A.
58. PW-1 Mohd. Shakir stated that Investigating Officer had called him at the place of incident and recorded his statement. However, neither the complainant nor PW-5 SI Balwant Singh stated anything in this regard.
59. PW-5 SI Balwant Singh stated that on 14.04.2013 at about 05.00 a.m., he alongwith PW-3 Ct. Mahesh, PW-4 Ct. Brahmjeet and PW-7 Ct. Rajesh reached Tiraha Bairam Khan in a Govt. Gypsy and there, he called the complainant. Thereafter, he alongwith the complainant reached at the corner of Faiz Bazar, near Kasturba Gandhi Hospital, Darya Ganj, Delhi.
FIR No. 55/2013 State vs. Nadeem & Anr. Page No. 27 of 33
60. PW-5 SI Balwant Singh further stated that at the instance of the complainant, he apprehended the accused Nadeem and recovered a wad of bank notes in the denomination of Rs. 20/- and mobile phone make Nokia from him. The complainant also stated that on 14.04.2013, PW-5 SI Balwant Singh called him and at about 05.45 a.m., he reached at crossing of Bairam Khan where PW-5 SI Balwant Singh alongwith police officials was present. On the contrary, PW-3 Ct. Mahesh stated that the complainant was not called at Tiraha Bairam Khan and he was found there by chance. PW-5 SI Balwant Singh or the complainant has not stated the mobile number of the complainant on which PW-5 SI Balwant Singh made call to him. PW-5 SI Balwant Singh, in his cross-examination, stated that he called the complainant through telephone. He stated that he does not remember the number of the complainant which he had dialed.
61. As noted above, the complainant stated that he had reached at crossing Bairam Khan at about 05.45 a.m. on 14.04.2013. PW-5 SI Balwant Singh stated that on 14.04.2013 at about 05.00 a.m., he alongwith police officials reached at Tiraha Bairam Khan and there, he called the complainant and thereafter, they reached at the corner of Faiz Bazar, near Kasturba Gandhi Hospital, Darya Ganj, Delhi where he apprehended the accused Nadeem and made recoveries from him, as stated above. According to arrest memo, the accused Nadeem was arrested at 06.15 a.m. on 14.04.2013 at Faiz Bazar, near Kasturba Gandhi Hospital, Darya Ganj, Delhi. On the contrary, PW-3 Ct. Mahesh stated that they left PS Chandni Mahal at 07.00 - 08.00 a.m. PW- 4 Ct. Brahmjeet stated that they left PS at about 02.30 - 03.00 a.m. and they reached Durga Sweets at about 03.00 a.m. FIR No. 55/2013 State vs. Nadeem & Anr. Page No. 28 of 33
62. On the aspect of efforts made by PW-5 SI Balwant Singh to join public persons at the time of search and seizure proceedings qua the accused Nadeem, PW-5 SI Balwant Singh stated that he had asked public persons to join investigation but none of them agreed to join investigation. On the contrary, PW-3 Ct. Mahesh stated that PW-5 SI Balwant Singh had not asked any person to join investigation. PW-7 Ct. Rajesh stated that no one was asked to join investigation.
63. It is relevant to note that DD No. 6A was regarding assault and robbery by 4-5 persons. However, no Customer Application Form (CAF) and Call Detail Record (CDR) pertaining to the said call was produced. The prosecution has not produced PCR form pertaining to the receipt of PCR call from mobile No. 9899522748 resulting into recording of DD No. 6A.
64. As regards recovery of a wad in denomination of Rs. 20/- from the accused Nadeem, it is seen that PW-1 Mohd. Shakir and the complainant have not stated that the said wad was striped with a strip containing 'BRBNNPL-MYSORE'. PW-3 Ct. Mahesh and PW-4 Ct. Brahmjeet were accompanying PW-5 SI Balwant Singh. However, seizure memo Ex.PW2/B pertaining to seizure of mobile phone make Nokia 3110 and amount of Rs. 2,000/- does not bear signature of PW-3 Ct. Mahesh and PW-4 Ct. Brahmjeet.
65. It is relevant to note that PW-4 Ct. Brahmjeet does not state anything regarding presence of PW-7 Ct. Rajesh at the time of apprehension, arrest and search of the accused Nadeem.
66. Therefore, there are material contradictions on all material aspects from recording of DD No. 6A till arrest and search of amount and mobile phone from the accused Nadeem.
FIR No. 55/2013 State vs. Nadeem & Anr. Page No. 29 of 33
67. On the aspect of arrest and recovery from the accused Tiggi, the complainant stated that the accused Nadeem led them to Talab Chowk where the accused Tiggi was arrested and one knife and Ping silver colour mobile phone were recovered from him. He has not stated anything regarding the place of arrest and manner of recovery and place of recovery. PW-5 SI Balwant Singh stated that from the place of arrest of the accused Nadeem, he alongwith police officials and the complainant reached Talab Chowk in Govt. Gypsy where the accused Tiggi was found in his house and he recovered a buttondar knife and a Ping mobile phone from him. In his cross- examination, he stated that they reached Mandawali at about 08.15 a.m. on 14.04.2013 and he remained there till 09.30 a.m. The time of arrest of the accused Tiggi is 09.00 a.m. on 14.04.2013. The place of arrest is H. No. 244/43, Gali No. 7, Talab Chowk, Mandawali, Delhi. It is relevant to mention that disclosure statement of the accused Nadeem Ex.PW2/F does not mention address of the accused Tiggi. PW-5 SI Balwant Singh also admitted this fact, in his cross-examination, that address of the accused Tiggi is not mentioned in disclosure statement of the accused Nadeem.
68. Therefore, the case of the prosecution is that the accused Nadeem was arrested at 06.15 a.m. on 14.04.2013 and at his instance, the accused Tiggi was arrested at 09.00 a.m. on 14.04.2013 from his house. On the contrary, PW-3 Ct. Mahesh stated that at about 10.00 - 11.00 a.m., they left for Mandawali in Govt. Gypsy whereas PW-5 SI Balwant Singh stated that they reached Mandawali at about 08.15 a.m. and remained there till 09.30 a.m. FIR No. 55/2013 State vs. Nadeem & Anr. Page No. 30 of 33
69. PW-4 Ct. Brahmjeet was on a different tangent. He stated that they had taken about half an hour in reaching Mandawali from Bairam Khan T-point and it was night hours. He spilled the beans of the prosecution case in his statement that they had left Mandawali after 10.00 p.m. Therefore, there is considerable divergence on the aspect pertaining to time of arrest of the accused Tiggi.
70. On the aspect of arrest and recoveries from the accused Tiggi, PW-5 SI Balwant Singh stated that mother, wife and other family members of the accused Tiggi were present in his house and he did not ask any neighbour to join the proceedings. PW-7 Ct. Rajesh stated that they pushed and opened the door as no one responded to the knocking. On the contrary, PW-3 Ct. Mahesh stated that the accused Tiggi was alone in his room. PW-5 SI Balwant Singh did not join any witness to search and seizure proceedings qua the accused Tiggi. He did not make any of his family members witnesses to seizure memos. Seizure memos Ex.PW2/J and Ex.PW2/K pertaining to recovery of knife and mobile phone make Ping do not bear signature of PW-3 Ct. Mahesh and PW-4 Ct. Brahmjeet. The prosecution has not proved any arrival entry pertaining to arrival of PW-5 SI Balwant Singh alongwith police officials and the accused persons from Mandawali. The prosecution has not produced log book of Govt. Gypsy.
71. In the presence of such material contradictions, omissions and defects in investigation, this Court is of the considered opinion that the prosecution witnesses are unreliable and the case of the prosecution is shrouded with suspicion and cannot be held proved beyond reasonable doubt.
FIR No. 55/2013 State vs. Nadeem & Anr. Page No. 31 of 33 CONCLUSION:
72. Accordingly, the accused Nadeem is acquitted from offences under Section 392/34 IPC and 411 IPC. The accused Abdul Salam @ Wasim @ Tiggi is acquitted from offences under Section 392 IPC read with Section 397 IPC and 411 IPC and 25 of 'The Arms Act, 1959'. Digitally signed by SANJAY SANJAY SHARMA SHARMA Date:
2023.10.11 16:45:29 +0530 Announced in the open Court SANJAY SHARMA-II on this 11th October, 2023 DJ (Commercial-11) (Central) Tis Hazari Courts, Delhi FIR No. 55/2013 State vs. Nadeem & Anr. Page No. 32 of 33 State vs. Nadeem & Anr.
CNR No.: DLCT01-001774-2013 SC No. 28384/2016 FIR No. 55/2013 PS Chandni Mahal 11.10.2023 Present : Mr. Amit Dabas, Ld. Addl. PP for the State (through Video Conferencing).
Mr. Hukam Chand, Ld. Legal Aid Counsel for both the accused persons.
The accused, namely, Nadeem is present.
The accused, namely, Abdul Salam @ Wasim @ Tiggi is produced from CJ No. 1, Tihar, New Delhi (through Video Conferencing).
Vide separate judgment announced in the open Court, the accused Nadeem is acquitted from offences under Section 392/34 IPC and 411 IPC. The accused Abdul Salam @ Wasim @ Tiggi is acquitted from offences under Section 392 IPC read with Section 397 IPC and 411 IPC and 25 of 'The Arms Act, 1959'. The accused persons are admitted to bail on furnishing personal bond in the sum of Rs. 10,000/- each, as required under Section 437A Cr.P.C. Personal bond qua Nadeem furnished and accepted. Jail Superintendent, Central Jail No. 1, Tihar, New Delhi is requested to send personal bond of the accused, namely, Abdul Salam @ Wasim @ Tiggi to the Court. A copy of order be sent to Jail Superintendent, Central Jail No. 1, Tihar, New Delhi for information and compliance. File be consigned to record room.
Digitally signed by SANJAY Sanjay Sharma-II SANJAY SHARMA SHARMA Date: DJ (Commercial-11) 2023.10.11 16:45:41 +0530 Central, THC, Delhi 11.10.2023 FIR No. 55/2013 State vs. Nadeem & Anr. Page No. 33 of 33