Delhi District Court
State vs Mohd Naushad Etc on 3 July, 2019
FIR No. 3/2010
PS I.P.Estate
U/s 392/411/34 IPC
State Vs Mohd Naushad etc
IN THE COURT OF SH. VIPLAV DABAS
METROPOLITAN MAGISTRATE: 03, CENTRAL, DELHI
CIS No. 295965/2016
FIR No. 3/2010
PS I.P.Estate
U/s 392/411/34 IPC
State Vs Mohd Naushad
Date of Institution of case : 19.11.2010
Date of Judgment : 03.07.2019
JUDGMENT:
a) Date of offence : 11.01.2010 b) Offence complained of : U/s 392/411/34 IPC c) Name of Accused, his : 1) Mohan Singh parentage & residence S/o Sh. Amar Singh R/o H.No. 114, Surbhi Apartment, Extension1, Shalimar Garden, Ghaziabad, U.P. (already declared proclaimed offender vide order dated 08.07.2014) 2) Mohd Naushad S/o Sh. Ishityaq Ahmad R/o H.No. A19/391, Brij Puri, Delhi94. d) Plea of Accused : Pleaded not guilty e) Final order : Acquitted Page No.1/13 FIR No. 3/2010 PS I.P.Estate U/s 392/411/34 IPC State Vs Mohd Naushad etc BRIEF FACTS AND REASONS FOR DECISION: Case of the prosecution in brief is as follows: 1) The accused in the present case is facing trial in case FIR No. 3/10 dated
11/01/2010, PS IP estate under sections 392 /411/ 34 IPC.
2) The allegations of the prosecution in brief are that on 11/01/2010 Ct. Sh. Baleshwar Singh (hereinafter, the complainant) S/o Late Sadhu Ram R/o F 316/23 Chander puri Chand Bagh, Delhi110094 working in Delhi police as a driver, after meeting his relative at JPN hospital boarded a blue line bus number 502 from Ambedkar stadium around 9.15AM to reach his office. It is alleged that as he boarded the bus, two men, one in front and the other behind him, took his mobile phone from his pant's pocket. On his catching them red handed and resisting the same, the boys started beating/thrashing him. As a result of the tussle the complainant and other accused person fell off the bus yet the mobile continued to be in the possession of the complainant. The complainant boarded another bus with route number 781 as he ran towards ITO. He then changed the bus and hopped onto same bus with route number 502, it is then when he calls the PCR 100 and is directed to deboard at Patiala House where he is assured of requisite assistance. The mobile phone remained with complainant during the tussle and thereafter and was used to make the PCR call. On getting off at Patiala House, it is mentioned by the complainant that the same bus of route number 502 in which incident happened passed by and on seeing the police officials and public persons the accused persons started fleeing but were apprehended by the police officials. On the basis of the said allegations present FIR was registered and chargesheet for offences punishable u/s Page No.2/13 FIR No. 3/2010 PS I.P.Estate U/s 392/411/34 IPC State Vs Mohd Naushad etc 392 /411/34 IPC was filed after usual investigation.
3) The Court took cognizance of the abovesaid offence u/s 392/411/34 IPC and provisions of Section 207 Cr.P.C were complied. After hearing arguments, as a prime facie case was made out against the accused Mohd Naushad for offence punishable u/s 392/394/34 IPC, charge was accordingly framed against him to which accused Mohd Naushad pleaded not guilty and claimed trail. During the course of proceedings, accused Mohan declared proclaimed offender vide order dated 08.07.2014.
4) In order to prove the guilt of the accused u/s 392 & 394 read with Section 34 IPC, the prosecution has to prove the following essential ingredients of the said Section:
a. Section 392 IPC: The subject matter of the offence is a movable property, that it was moved out of the possession of any person without his consent & with dishonest intention, that the accused caused or attempted to cause death, hurt or wrongful restraint or fear of death or of instant hurt or instant wrongful restraint to any person in committing theft or in order to commit theft or in carrying away or attempting to carry way the property obtained by such theft.
b) Section 394 IPC: That accused committed or attempted to commit robbery, that accused & anybody else jointly concerned in committing or attempting to commit the robbery caused hurt and that hurt was caused voluntarily.
c) Section 34 IPC:
i) That the criminal act or a series of acts which include omissions and need not necessary be an overt act should have been done not by one person but by more then one person.Page No.3/13 FIR No. 3/2010
PS I.P.Estate U/s 392/411/34 IPC State Vs Mohd Naushad etc
ii) That the doing of every such individual act cumulatively resulting into the commission of criminal offence should have been in furtherance/ advancement/ promotion of common intention of all such persons.
5) The prosecution examined PW1 Retired SI Jai Singh, PW2 Sh. Baleshwar Singh, PW3 Dalibir Singh, PW4 HC Preetam Singh, PW5 Inspector Meena Yadav & PW6 HC Naveen Kumar to prove its case. The documents FIR no. 3/2010, DD no. 10A and 11A recorded by Kamlesh; DD entry no.3A at PS Tilak Marg recorded by HC Badshah and statement u/s 161 of SI Satya prakash qua PCR call have been admitted by the accused u/s 294 though he had denied the allegations therein.
6) The brief substance of the evidence on record of the PWs are in following paragraphs.
7) PW1 Retired Jai Singh, posted on emergency duty at the PS Tilak marg received DD no. 3A around 9.58AM on 11/01/2010. He proceeded with Ct. Navin to the location where the blue line bus, the complainant, the bus driver Dalbir were present and the complainant produced two persons who have been chargesheeted and also the nokia mobile phone N72. PW1 gave the intimation of the incident to PS IP Estate vide DD no. 10A. PW1 along with the complainant, the driver, two apprehended persons proceeded to PS IP Estate when nobody from the PS IP estate turned up at the location. He handed down both apprehended persons and the mobile phone to the duty officer. At the same time W/SI Meena Yadav along with Ct Pritam came to the PS IP estate and FIR was lodged by her. PW1's statement was recorded thereafter. During the cross of PW1, it has come on record that no statement of the witness was recorded in his presence and that he also did not know Page No.4/13 FIR No. 3/2010 PS I.P.Estate U/s 392/411/34 IPC State Vs Mohd Naushad etc as who were the persons handed over to him by the bus driver. In addition, it has also come on record that no identification mark was put on the recovered mobile in his presence.
8) PW2 Sh. Baleshwar Singh, the complainant, deposed on oath that after meeting his relative at JPN hospital, he boarded a blue line bus number 502 from Ambedkar stadium around 9.15AM to reach his office. It is alleged that as he boarded the bus, two men, one in front and the other behind him, took his mobile phone from his pant's pocket. On his catching them red handed and resisting the same, the boys started beating/thrashing him. As a result of the tussle the complainant and other accused person fell off the bus yet the mobile continued to be in the possession of the complainant. The complainant boarded another bus with route number 781 as he ran towards ITO. He then changed the bus and hopped onto same bus with route number 502, it is then when he calls the PCR 100 and is directed to deboard at Patiala House where he is assured of requisite assistance. The mobile phone remained with complainant during the tussle and thereafter and was used to make the PCR call. On getting off at Patiala House, it is mentioned by the complainant that the same bus of route number 502 in which incident happened passed by and on seeing the police officials and public persons the accused persons started fleeing but were apprehended by the police officials. The police officials took complainant/PW2 and two apprehended men to PS IP estate. PW2's statement was recorded u/s161 and he verified his signatures on Ex. PW2/A. The site plan was made by the police at the instance of the complainant when he took them to the spot. The accused persons were arrested vide arrest memo Ex. PW2/D and Page No.5/13 FIR No. 3/2010 PS I.P.Estate U/s 392/411/34 IPC State Vs Mohd Naushad etc Ex.PW2/E and they were searched vide personal search memo Ex. PW2/B and Ex. PW2/C. During the cross of the PW2 it has come in record that he did not mention certain facts in his complaint and his statement to the police official. There is significant divergence in number of people who surrounded him which varies from six to seven at one occasion and two(one in front and one behind) on the other. The complainant did not undergo medical examination as he did not suffer any injury. But he deposed in his testimony that he suffered rashes on hips which did not find any mention in the complaint he made. He stated that statement of the driver was not taken infront of him and he does not recall the registration number of the buses which he changed in the course of the incident.
9) PW3, Dalbir Singh, deposed on oath that he was a private bus driver in Delhi. He does not remember the date, month or year when the incident happened. He mentioned that on the date of incident he was driving bus route no. 502 and there was some noise in the bus and as they reached next bus stand the passengers got off the bus. He has left driving five to six years back due to fatal accident he suffered. He deposed that he could not recall anything owing to the fatal injury he suffered on the head. This witness was not cross examined by or on behalf of accused despite opportunity.
10) PW4, HC Preetam Singh, deposed on oath that he was posted as constable at PS IP Estate. On 11/01/2010 as the information was received vide DD no. 10A, PW4 proceeded to the spot with PW5, Meena Yadav and not finding anybody at the spot, he returned back to the PS IP estate where he found PW1 (SI Jai Singh), Ct Page No.6/13 FIR No. 3/2010 PS I.P.Estate U/s 392/411/34 IPC State Vs Mohd Naushad etc Navin, PW 3bus driver Dalbir Singh and PW2, the complainant Baleshwar along with two persons who were handed over to the W/SI Meena Yadav who registered the case and then he proceeded to the spot at the instance of the complainant. After returning to PS I P Estate, the accused persons were arrested and their personal search was conducted vide arrest memo Ex.PW2/D & Ex. PW2/E and search memos vide Ex.PW2/B & Ex.PW2/C. He further deposed that the recovered mobile phone was handed over to the PW5 Meena Yadav and seizure memo was prepared in his presence Ex.Pw4/A and he verifies his signatures thereon. Thereafter, medical examination of both the accused was conducted. PW4 was shown colored photos of the case property as in the judicial file which he correctly identified which are ExP1 to P4 (Colly). It came on record during the crossexamination of PW4 that no recovery was made form the accused Naushad in his presence and no identification mark was put on the case property in his presence. He stated that while handing over the case property at PS IP Estate it was not sealed and the handing over memo was not made in his presence.
11) PW5 Inspector Meena Yadav (the then SI) deposed on oath that she was posted as SI at PS IP estate and was on emergency duty on date 11/01/2010 and after receiving DD no 10A Ex.A2 regarding theft of mobile phone and apprehension of the accused at Indian Express Building BSZ Marg, she proceeded to the location but returned to the PS IP Estate on not finding anybody at the spot. She deposed that thereafter she received another DD No11A and SI Jai Singh (PW1) and Ct Navin (PW6) have brought the complainant Baleshawar and two persons to the PS IP Estate. She verified her signatures on the statement of complainant recorded vide Page No.7/13 FIR No. 3/2010 PS I.P.Estate U/s 392/411/34 IPC State Vs Mohd Naushad etc Ex.PW2/A; on the rukka Ex PW5/A; on the site plan Ex PW5/B & on the seizure memo of mobile phone Ex PW4/A. She proved her signatures at point C on the arrest memos Ex.PW2/D and Ex. PW 2/E and on personal search memos of both the accused at point C which are Ex PW2/B and Ex PW2/C. She deposed that she recorded the statements of the witnesses and accused and forwarded the accused persons to the Ld. Magistrate where they were sent to judicial custody. She identified the photos of the case property shown to her which are Ex P1 to P4. It has come on record during the cross examination of PW5 that the mobile phone was recovered form the possession of the complainant. She deposed that she does not remember if the registration number of the bus was told by the complainant.
12) PW6, Ct Navin deposed on oath that he was posted on as constable at PS Tilak Marg on 11/01/2010 and on receiving DD No.3A, he along with SI Jai Singh PW1, proceeded to Patiala house where complainantPW2, Dalbir Singh Driver PW3 and the accused persons were present. He deposed that they handed over the accused persons to the duty officer at PS IP Estate. He identified the accused present in the court. This witness was not cross examined by or on behalf of accused despite opportunity.
13) Thereafter, Prosecution Evidence was closed as all the material witnesses were examined. The Statement of Accused was recorded U/Sec 313 Cr. P.C on 01.07.2019 and all the incriminating circumstances appearing in evidence were put to the accused to which the accused replied that he has been falsely implicated in the present case, that the complainant had altercation with the coaccused Mohan who was his friend and that due to this reason the complainant falsely implicated Page No.8/13 FIR No. 3/2010 PS I.P.Estate U/s 392/411/34 IPC State Vs Mohd Naushad etc him in the present case. The accused did choose to lead evidence in his defence and matter was fixed for fixed for defence evidence. However, on 02.07.2019 the accused closed defence evidence vide a separate statement without examining any witness and matter was fixed for final arguments.
14) This Court heard the arguments of the Ld. APP for the State and the Ld. Counsel for the accused and have gone through the entire record as well as written submissions of Ld. Counsel for accused. It is submitted by Ld. APP for the State that prosecution has proved its case beyond reasonable doubts and all the ingredients of relevant sections are completed. The defence counsel argued that there are discrepancies in the statements of the complainant. The complainant has introduced new facts at each stage of examination. Declining to undergo medical is another factor to disbelieve that complainant inflicted with any injury/hurt at the time of incident. Seizure of the allegedly stolen mobile phone is shrouded in doubts as no prosecution witness was able to prove if it was sealed in front of them. The very recovery and process thereof is fallacious. There is no public witness to depose of the incident despite the incident having taken place in public transport. Infact, the driver of the bus, has also failed to recall details of the incident.
15) On the basis of the testimonies of the prosecution witness and the cross examination thereof, the facts stated therein, the prosecution story is that the complainant boarded the bus and he was immediately surrounded by two people, one in front and other from behind and one of the accused took mobile from his pocket which he resisted and caught hold of (while mobile remained with complainant). On his resistance the other accused whose role as to what he did is Page No.9/13 FIR No. 3/2010 PS I.P.Estate U/s 392/411/34 IPC State Vs Mohd Naushad etc not specified in his testimony) used a ustara/razor and caused hurt to him. They continued fighting and being in tussle, complainant and one accused fell off the bus (which accused fell with complainant is again a question unanswered). The complainant then changed the bus twice thereafter. No further information/fact has surfaced during examination of the prosecution witnesses as to what happened during changing of bus. If the complainant was chased, then by which accused and till what extent. It is important to bear in mind that all this while the mobile phone is with the complainant. Also, all calls were made to the police during such transaction of changing the buses (time of which is not recalled by the complainant as stated in his chief). It is also the fact stated by the complainant that as he was directed by the police official to deboard at Patiala House and as he did, the first bus in which incident happened passed by wherein accused persons were there and also the police and public persons were present as per the complainant. It is too fantastic a chain of events to believe that same bus passed and even after commission of the offence the accused persons would stay on board of the same bus. Moreso its interesting to note as mentioned by complainant, he fell off with other accused person during the tussle. Its improbable for a person i.e. accused who fell on road to again board just the same bus and continue riding on it in which he had committed offence. The complainant in his statement under Section 161 Cr.P.C lucidly mentioned he suffered no injuries and hence declined the medical examination while during his cross he claimed to have suffered hip rashes owing to falling off the bus. There is no proof of hurt suffered. There is no ustara/ razor found from the person of the accused, even when they were apprehended by the police official who surprisingly waited for the bus carrying the accused persons pass Patiala House. Its very unlikely Page No.10/13 FIR No. 3/2010 PS I.P.Estate U/s 392/411/34 IPC State Vs Mohd Naushad etc for the police officials to not have record of bus registration number despite being at the spot for an hour (PW1). The much alleged stolen mobile phone always remained and was found in possession of the complainant and is substantiated by the cross of PW5. The whole process of making the subject matter mobile phone a case property is itself shrouded in mystery as neither identification mark was put thereon nor was it sealed as stated by PW1 and PW4. It is vital to note that PW3 the driver of the bus has no recollection of the facts of the case owing to the injuries he suffered so his testimony is also of no consequence.
16) It is to be borne in mind that to prove the charge under Section 392 (punishment for robbery) we should check Section 390 (Theft when Robbery), according to which it is a sine qua non to prove theft at first for establishing the said charge. Charge under section 378, theft, could be sustained when the prosecution proves :
i) Dishonest intention
ii) Moving of property (movable) from the possession of the complainant
iii) With out his consent, In the factual matrix of the present case there is nothing concrete on record that proves the intention of the accused persons. There is no independent witness to testify the manner of commission of offence to substantiate the mental element, as to 'how' offence was committed. The complainant's version if to be believed, still does not travel the distance of offence 'may have been' to 'is' committed by the accused persons. The statements of the complainant himself suffer many infirmities, inconsistencies and abrasions. In such circumstances rule of prudence requires to look for corroboration of material facts independent of the complainant's version.
Page No.11/13 FIR No. 3/2010PS I.P.Estate U/s 392/411/34 IPC State Vs Mohd Naushad etc But there is nothing on the record to corroborate the complainant's version. The cumulative effect of the statements being improvised each time does not appeal a sane mind and make it tedious to believe too fantastic a story. In absence of the mental element offence u/s 379 is not made out.
17) Since the offence under Section 379 IPC is not made out, section 390 IPC is not tenable. The Section 390 IPC further requires that :
i) In committing theft, in order to committing of theft, in carrying or attempting to carry property obtained by theft
iii) Causes/attempt to cause hurt (relevant to the present case) So in nut shell, section 392 IPC is sustained in present case only if theft is proved along with causation of hurt. In the conspectus of the case, there is nothing on record or proved to the effect that hurt was caused to the complainant. The complainant did not undergo medical examination, willingly and changed his stance from no injury u/s161 statement to hip rashes during the cross examination. So in light of abovmentioned facts the accused person cannot be implicated u/s 392 IPC.
18) For the charge of section 394 IPC, its imperative for the prosecution to prove the case of robbery fist as Section 392 IPC. As meticulously noted above, robbery is not made out so, coupled with the fact no evidence of hurt on record, charge under section 394 IPC cannot be sustained.
19) In the view of aforesaid facts and circumstances and legal requirements needed to the effect thereof, in my considered opinion, the accused Mohd Naushad S/o Sh. Ishityaq Ahmad is acquitted of the charges leveled against him. The prosecution has terribly failed in proving its case and discharging the onus thereon Page No.12/13 FIR No. 3/2010 PS I.P.Estate U/s 392/411/34 IPC State Vs Mohd Naushad etc as u/s 101 Indian Evidence Act, 1872. Bail bonds stand cancelled and Surety be discharged, if any. Documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any. Fresh bail bond and surety bond have already been furnished and accepted in compliance of Section 437 (A) Cr.P.C.
File be consigned to the Record Room with direction to revive the same as and when accused Mohan Singh is apprehended.
Digitally signedVIPLAV by VIPLAV DABAS DABAS Date: 2019.07.05 17:51:14 +0530 Announced in the Open Court (VIPLAV DABAS) today i.e on 03.07.2019 MM03/CENTRAL:DELHI 03.07.2019 Page No.13/13