Delhi District Court
State vs (1) Sagar @ Jahangir @ Dada on 8 September, 2016
FIR No. 21/14; U/s 395/4I2 IPC; P.S. KN Katju Marg DOD: 08.09.2016 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI SC No. 258/16 State Versus (1) Sagar @ Jahangir @ Dada S/o Noor Mohammad R/o Village Ismailpur, Kutub Ka Makan, PS Palla, District Faridabad (Haryana) Permanent Address: Village Naldugi, P.O. Datto Pulia Bazar, PS Dhantala, District Nadia West Bengal (Declared PO vide order dated 02.05.2016) (2) Ajibul Khan @ Bullet S/o Kuddas Khan R/o Bangali Jhuggi, Sector26, Rohini, Delhi. Permanent Address: Village Paikore, PS Muradai, District Gualmal, West Bengal (Declared PO vide order dated 02.05.2016) (3) Sakir @ Chetan S/o Ali Sher R/o Jhuggi No. 73, Abdul Hamid Colony, Sector12, Vijay Nagar, Ghaziabad, U.P. (4) Suhag @ Rustam S/o Abdul Haque State V/s Sagar @ Jahangir @ Dada etc. ("Acquitted") Page 1 of 13 FIR No. 21/14; U/s 395/4I2 IPC; P.S. KN Katju Marg DOD: 08.09.2016 R/o Jhuggi Nai Basti, Tila More, Sahibabad, Ghaziabad, U.P. (Declared PO vide order dated 21.10.2014) (5) Kalam Seikh @ Anarul S/o Karamat Seikh R/o Santu Ki Jhuggi, Sector26, Rohini, Delhi. FIR No. : 21/14 Police Station : KN Katju Marg Under Sections : 395/412/34 IPC Date of committal to Sessions Court : 19.11.2014 Date on which judgment was reserved: 08.09.2016 Date on which Judgment pronounced : 08.09.2016 JUDGMENT
1. The above named accused persons had been sent to face trial for the offences punishable U/s 395/412 IPC and Section 27 Arms Act. Before proceeding further, it may be noted here that accused Suhag @ Rustam absconded and failed to appear before Ld. Magistrate on being summoned by him after taking cognizance of the offences and consequently, he was declared proclaimed offender on 21.10.2014 after following due process of law.
2. The case of the prosecution as mentioned in the chargesheet is as under: State V/s Sagar @ Jahangir @ Dada etc. ("Acquitted") Page 2 of 13 FIR No. 21/14; U/s 395/4I2 IPC; P.S. KN Katju Marg DOD: 08.09.2016
(i). That on 05.01.2014 at about 2.45 am, intimation was received in PS KNK Marg regarding theft in the godown situated in front of Delhi Engineering College, Shahbad Extn. The said information was recorded vide DD no. 4A and same was entrusted to ASI Rawat Singh for necessary action;
(ii) That on receipt of DD no. 4A, ASI Rawat Singh alongwith Ct. Suresh Kumar went to the place of information, where they met complainant Sunil Kumar. Accordingly, ASI Rawat Singh recorded statement (Ex.PW5/A) of complainant, wherein he claimed that he had properly locked the inner and outer gate of the godown at 11 pm on 04.01.2014 and slept in the office situated in the said premises. At about 1.00 am, 23 persons entered inside his office and overpowered him. On the pointing out of one country made pistol, they took bunch of keys and opened main gate of the godown; brought tempo having 34 persons, inside the said godown. Thereafter, the offenders tied his hands, legs and also covered his face and then committed theft of 34 sillies of copper and 3233 sillies of aluminum and small pieces of aluminum contained in 5060 bags apart from one computer, its accessories and gas cylinder. He further claimed that the offenders had also committed robbery of his mobile phone having dual SIM and fled away after loading the said articles in the said tempo. On the basis of said statement, State V/s Sagar @ Jahangir @ Dada etc. ("Acquitted") Page 3 of 13 FIR No. 21/14; U/s 395/4I2 IPC; P.S. KN Katju Marg DOD: 08.09.2016 FIR in question was got registered by ASI Rawat Singh for offence U/s 395 IPC through Ct. Suresh and investigation was entrusted to SI Vineet Kumar;
(iii) It is further the case of prosecution that during investigation, IO collected relevant documents concerning robbed articles and made efforts to apprehend the offenders. On 05.03.2014, an intimation vide DD No. 67B was received in PS K.N. Katju Marg from Crime Branch officials regarding apprehension of accused persons namely Sagar @ Jahangir @ Dada, Suhag @ Rustam, Sakir and Ajibul Khan @ Bullet U/s 41.1 Cr.P.C. vide DD no. 4 and all said four accused having confessed their involvement in the commission of offences of present case. Accordingly, all the said four accused were formally arrested in this case;
(iv) It is further the case of prosecution that on 06.03.2014, investigation was handed over to SI Anwar Khan who moved an application for conducting TIP of said accused persons, but they all refused to participate in judicial TIP, whereafter their police remand was obtained. During police custody remand, accused Ajibul Khan @ Bullet (both P.O.) got recovered part robbed articles during their respective houses. Necessary proceedings with regard to seizure of recovered case property and making of relevant memos were carried out. However, State V/s Sagar @ Jahangir @ Dada etc. ("Acquitted") Page 4 of 13 FIR No. 21/14; U/s 395/4I2 IPC; P.S. KN Katju Marg DOD: 08.09.2016 accused Sagar @ Dada and Sakir @ Chetan did not get recovered the robbed case property despite their two days police custody remand;
(v) It is further the case of prosecution that on 22.03.2014, accused Kalam Sheikh @ Anarul was arrested on the basis of secret information and said accused also refused to participate in judicial TIP;
(vi) It is further the case of prosecution that during investigation, Sh. Rajesh Khandelwal, who was owner of the robbed articles, identified the recovered case property during judicial TIP of case property. IO also recorded statements U/s 161 Cr.P.C. of relevant witnesses and collected copy of TIP proceedings. After completion of investigation, chargesheet had been filed before the Court.
3. After compliance of Section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to this Court.
4. After hearing arguments on the point of charge, this Court had framed the charge for the offence punishable U/s 395 IPC against accused persons namely Sagar @ Jahangir @ Dada, Ajibul Khan @ Bullet, Shakir @ Chetan and Kalam Seikh and separate charge for the offence punishable U/s 412 IPC against accused Sagar @ Jahangir and Ajibul Khan @ Bullet vide order dated 19.12.2014, to which they pleaded not guilty and claimed trial.
State V/s Sagar @ Jahangir @ Dada etc. ("Acquitted") Page 5 of 13FIR No. 21/14; U/s 395/4I2 IPC; P.S. KN Katju Marg DOD: 08.09.2016
5. Before proceeding further, it may be noted that accused Sagar @ Jahangir @ Dada and Ajibul Khan @ Bullet also absconded during trial and after following due process of law, both the said accused were declared P.O. on 02.05.2016.
6. In support of its case, the prosecution examined five witnesses namely PW1 Ct. Raj Kumar, PW2 ASI Ajeet Singh, PW3 Sh. Sunil Kumar, PW4 Sh. Chanderjeet Singh and PW5 Sh. Sunil Kumar during trial.
7. Considering the fact that the only star witness i.e. PW5 Sh. Sunil Kumar relied by the prosecution in the present case qua these two accused facing trial before the Court, had not supported the prosecution story on any material point, the prosecution evidence has been closed as no useful purpose would have been served in examining remaining prosecution witnesses. Thus, it would have been an exercise in futility in examining those prosecution witnesses besides wastage of precious time of the Court.
8. Since there was no incriminating evidence against the accused persons namely Sakir @ Chetan and Kalam Seikh, their statements U/s 313 Cr.P.C. had been dispensed with.
9. I have heard Sh. Pankaj Bhatia, Ld. Additional Public Prosecutor on behalf of State and Ld. counsel on behalf of accused Sakir @ Chetan and Kalam Seikh. I have also gone through the material available on record.
10. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of State V/s Sagar @ Jahangir @ Dada etc. ("Acquitted") Page 6 of 13 FIR No. 21/14; U/s 395/4I2 IPC; P.S. KN Katju Marg DOD: 08.09.2016 prosecution witnesses examined during trial. The testimonies of prosecution witnesses are detailed as under: PUBLIC WITNESSES:
11. PW5 Sh. Sunil Kumar: He is the complainant/victim in this case. Although he supported the case of prosecution to the extent of commission of offences by the assailants, but he turned hostile on the point of identity of accused herein to be the offenders. He categorically deposed during trial that 23 persons who had entered inside the office, had covered their faces with pieces of clothes and only their eyes were visible. He testified that he cannot identify any of the offenders who had committed offences as all the offenders had covered their faces with pieces of clothes and only their eyes were visible. However, he identified recovered robbed articles i.e. one computer screen make LG, one key board, one CPU and some computer wires/cables as Ex.P1 to Ex.P4 respectively during trial. He also identified cloth pieces as Ex.P5 (colly.), three aluminum sillies contained in one sack as Ex.P6 (colly.) and four aluminum sillies contained in another sack as Ex.P7, to be the same sillies which were robbed from the godown by the offenders.
This witness was subjected to detailed cross examination on behalf of State on the relevant aspects on which he did not support the prosecution story during trial. All the relevant suggestions were put to him on the lines of prosecution story, but he denied the same. He also denied to have made supplementary statement dated 18.04.2014 Mark PW5/A before State V/s Sagar @ Jahangir @ Dada etc. ("Acquitted") Page 7 of 13 FIR No. 21/14; U/s 395/4I2 IPC; P.S. KN Katju Marg DOD: 08.09.2016 the police. Despite the fact that his attention was drawn towards accused Kalam Seikh @ Anarul and Sakir @ Chetan during trial, he still could not identify them to be amongst the offenders and reiterated that he could not identify them as the faces of offenders were covered with cloth pieces. Said witness has not been cross examined by accused persons despite grant of opportunity.
POLICE WITNESSES:
12. PW1 Ct. Raj Kumar: This witness was posted as photographer in Mobile Crime Team, Outer District. He deposed that at about 8 am on 05.01.2014, on receipt of call from District Control Room, he alongwith ASI Ajit, Incharge Mobile Crime Team and other staff had visited the place of occurrence i.e. one godown situated in Khasra No. 603, Shahbad Extension near Sector17, Rohini, Delhi, where they met IO SI Vineet and other local staff of PS KNK Marg. Upon the instructions of IO and Incharge Mobile Crime Team, he had taken 16 photographs of the place of occurrence from different angles. He exhibited said photographs as Ex.PW1/B1 to Ex.PW1/B16 and their negatives as Ex.PW1/A1 to Ex.PW1/A16.
13. PW2 ASI Ajeet Singh: He being Incharge of Mobile Crime Team, Outer District had visited the place of occurrence alongwith Photographer Ct. Raj Kumar and other staff at about 8 am on 05.01.2014 on receipt of call from District Control Room. He deposed that they met ASI Rawat Singh alongwith one more Constable at the spot. In the meantime, SI State V/s Sagar @ Jahangir @ Dada etc. ("Acquitted") Page 8 of 13 FIR No. 21/14; U/s 395/4I2 IPC; P.S. KN Katju Marg DOD: 08.09.2016 Vineet also reached there. They were informed that about 1015 persons had committed dacoity of valuable articles including copper and aluminum after confining Security Guard of said godown in the room during previous night. He also deposed that Ct. Raj Kumar took photographs of the scene of crime from different angles. He had inspected the place of occurrence, whereafter he had prepared his report Ex.PW2/A and had handed over the same to ASI Rawat Singh.
In his cross examination, he could not disclose the number of departure entry made in the office of Mobile Crime Team while leaving for the spot. He deposed that Security Guard, owner of godown and 23 persons were found present when they reached at the spot. IO did not request any of those persons to join the proceedings in his presence. He denied the suggestion that he had prepared report Ex.PW2/A at the instance of IO while sitting in the PS itself.
FORMAL WITNESSES:
14. PW3 Sh. Sunil Kumar: This witness being working as Link MM of the Court of PS KN Katju Marg, had conducted judicial TIP of accused Kalam Sheikh @ Anarul on 25.03.2014, vide TIP proceeding Ex.PW3/B. He deposed that said accused had refused to participate in judicial TIP on the ground that he might had been shown to the complainant or witnesses in the PS. He had also conducted judicial TIP of case property on the request of IO on 16.04.2014, vide TIP proceeding Ex.PW3/F. He State V/s Sagar @ Jahangir @ Dada etc. ("Acquitted") Page 9 of 13 FIR No. 21/14; U/s 395/4I2 IPC; P.S. KN Katju Marg DOD: 08.09.2016 deposed that the witness namely Sh. Rajesh Khandelwal had correctly identified the case property out of the articles lying on the table. He has not been cross examined by accused persons despite grant of opportunity.
15. PW4 Sh. Chanderjeet Singh: This witness being working as Link MM of the Court of PS KN Katju Marg, had conducted judicial TIP of accused persons namely Sagar @ Jahangir @ Dada, Ajibul Khan @ Bullet, Sakir @ Chetan and Suhag @ Rustam on 06.03.2014, vide TIP proceedings Ex.PW4/B, Ex.PW4/C, Ex.PW4/D and Ex.PW4/E respectively. He deposed that all the said four accused had refused to participate in judicial TIP on the ground that they had already been shown to the witnesses in PS. He has not been cross examined by accused persons despite grant of opportunity.
ARGUMENTS ADVANCED AND CASE LAW CITED
16. While opening the arguments, Ld Additional PP vehemently argued that the public witness i.e. PW5 has supported the case of prosecution to the extent of incident having taken place and thus, prosecution has been able to establish the guilt of accused persons for the offence punishable U/s 395 IPC. Thus, the accused persons namely Sakir @ Chetan and Kalam Seikh are liable to be convicted in this case.
17. On the other hand, Ld. defence counsel appearing on behalf of accused persons namely Sakir @ Chetan and Kalam Seikh, vehemently argued that both the said accused persons have been falsely implicated in this case. He further argued that no cogent evidence has been led by State V/s Sagar @ Jahangir @ Dada etc. ("Acquitted") Page 10 of 13 FIR No. 21/14; U/s 395/4I2 IPC; P.S. KN Katju Marg DOD: 08.09.2016 prosecution during trial and thus, prosecution has failed to establish the offence charged against both the said accused persons beyond shadow of doubt. Ld. defence counsel further argued that the star witness of prosecution i.e. PW5 Sunil Kumar has not identified any of these two accused persons during trial and thus, said accused persons deserve to be accorded benefit of doubt in this case.
18. It is well settled principle of law that an essential element of offence of dacoity is that five or more persons must conjointly commit or attempt to commit robbery(Reliance placed on AIR 1957 SC 320, 1992 Cr.LJ 3819 and AIR 1962 Manipur 7). It also needs no emphasis that actual participation by every one of the five or more persons in commission of the robbery whether as major actors or aiders, is necessary for the purpose of attracting offence U/s 395 IPC. Still if any authority is required then reference with advantage can be made to judgment reported at AIR 1973 SC 760. In other words, there must be some material available on record in order to show that there was assembly of atleast five persons in order to constitute the offence of dacoity.
19. Now adverting back to the facts of the present case. As already discussed above, complainant Sunil Kumar (PW5) was an eye witness of the entire occurrence. Thus, he was the only key witness for the purpose of establishing the guilt of accused persons namely Sakir @ Chetan and Kalam Seikh in this case. However, he undisputedly did not identify any of said two accused herein to be amongst the offenders who had committed dacoity State V/s Sagar @ Jahangir @ Dada etc. ("Acquitted") Page 11 of 13 FIR No. 21/14; U/s 395/4I2 IPC; P.S. KN Katju Marg DOD: 08.09.2016 in this case.
20. In view of the aforesaid discussion and the deposition made by the aforesaid prosecution witness i.e. PW5 Sunil Kumar, the entire case of prosecution has fallen down like a pack of cards. According to the case of prosecution, the aforesaid public witness alone had witnessed the incident. Thus, he alone could have proved the case of prosecution by deposing on the lines of prosecution story during trial. However, he did not depose on the lines of prosecution case as mentioned in the chargesheet. In view of the testimony of said public witness, Court is of the view that the entire case of prosecution has become doubtful.
21. The other prosecution witnesses and the documents relied by prosecution, could have been of corroborative value if something would have come on the surface in the deposition of said eye witness, but he turned hostile to the case of prosecution and nothing could be elicited in his cross examination on behalf of State connecting the accused persons namely Sakir @ Chetan and Kalam Seikh with the offence charged against them.
22. In view of all these facts and circumstances, the only conclusion which can be drawn by the Court is that prosecution has failed to bring home the guilt of aforesaid two accused persons for the offence punishable U/s 395 IPC. It is held accordingly. Hence, the accused persons namely Sakir @ Chetan and Kalam Seikh are hereby acquitted for the offence punishable U/s 395 IPC. File be consigned to Record Room after compliance of Section 437A Cr.P.C., as per rules. However, it shall be open State V/s Sagar @ Jahangir @ Dada etc. ("Acquitted") Page 12 of 13 FIR No. 21/14; U/s 395/4I2 IPC; P.S. KN Katju Marg DOD: 08.09.2016 for the prosecution/ State to get the matter revived as and when either of the accused persons namely Sagar @ Jahangir @ Dada, Ajibul Khan @ Bullet and Suhag @ Rustam is apprehended or is produced before the Court.
Announced in open Court today
On 08.09.2016 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
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