Delhi District Court
3.Title State vs . Waseem @ Munna on 8 December, 2021
THE COURT OF SHRI RUPINDER SINGH DHIMAN
METROPOLITAN MAGISTRATE01, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
1.FIR No. 460/2001, PS Bhajanpura
2.Unique Case no. 945/19
3.Title State Vs. Waseem @ Munna
3(A).Name of complainant Vikas Jain @ Mintu, S/o Shri Subhash Chand
Jain, R/o H. No. 3986, Shanti Mohalla, Gandhi
Nagar, Delhi110031.
3(B).Name of accused 1. Yusuf, S/o Fazle Raheem, R/o H. No. 93,
Gali no. 7, Jammu Mohalla, Maujpur, Delhi.
2. Waseem @ Munna, S/o Shri Mohd. Kamil,
R/o Bhagmal Ka Beda, Matawali Gali, North
Ghonda, Delhi.
4.Date of institution of challan 22.02.2002
5.Date of Reserving judgment 22.11.2021
6.Date of pronouncement 08.12.2021
7.Date of commission of offence 28.12.2001
8.Offence complained of U/s 392/411/34 IPC
9.Offence charged with U/s 392/411/34 IPC
10.Plea of the accused Pleaded not guilty
11.Final order Convicted u/s 392/411/34 IPC
12. Date of receiving of judicial 27.03.2015
file in this court
JUDGMENT
1. Briefly stated, the case of the prosecution is that on 28.12.2001 at 2:30 PM at Ghonda Chowk, Delhi within the jurisdiction of PS Bhajanpura, accused Waseem @ Munna, S/o Mohd. Kamil alongwith CCL Yusuf (sent to State Vs. Waseem @ Munna etc. Page 10 of 14 FIR No. : 460/2001 Juvenile Court) committed robbery of Rs. 2,40,000/ belonging to the complainant Vikas Jain @ Mintu. Thereafter, on 29.12.2001, stolen money amounting to Rs. 1,00,000/ were recovered from the house of the accused Waseem @ Munna and thus thereby committed offences punishable under section 392/411/34 IPC.
2. After preparing the site plan and completion of investigation, chargesheet was filed by the Investigation Officer under section 392/411/34 IPC.
3. On 22.03.2002, charge was framed U/s 392/411/34 IPC against the accused to which he pleaded not guilty and claimed trial.
4. Prosecution had named total 16 witnesses in the chargesheet.
5. I have perused the material on the record and have heard the submissions of Ld. APP for the State and Ld. Counsel for the accused.
6. PW1 is HC Ram Gopal. He registered the FIR bearing No. 460/2001 U/s 392/34 IPC on 28.12.2002 on the basis of rukka sent by SI Arjun Singh. After registration of FIR, he handed over the copy of FIR and rukka to Ct. Manoj Kumar. Formal witness.
7. PW2 is Ankit Jain. He has deposed that he is a Salesman at the shop of readymade garments in Gandhi Nagar. Arun was his good friend. He was also a Salesman at Gandhi Nagar. He alongwith Arun and his jijaji Vikas Jain (the complainant herein) were going to Ghonda chowk on the fateful day at about 2:15 PM on the bike of Vikas Jain. Meanwhile, Vikas Jain received phone call on his mobile and he went to attend the same. Waseem @ Munna (accused herein) who was known to him came and enquired from him as to what they were doing. He told the accused that he was going to make the payment. His polythene bag was containing Rs 2,40,000/. Accused State Vs. Waseem @ Munna etc. Page 10 of 14 FIR No. : 460/2001 immediately gave him 23 slaps in his back and then snatched the abovesaid polythene bag containing Rs. 2,40,000/. Meanwhile, Vikas Jain tried to stop the accused. However, the accused gave him a fist blow and managed to flee away. When Waseem was snatching the bag, CCL Yusuf also gave blows to Arun after catching him. Thereafter, accused persons fled away on bike bearing no. DL7S5369. Police was called and on reaching the spot recorded their statements. The witness was cross examined by Shri S.K. Tyagi, Ld. Counsel for accused, wherein he stated that he knew the accused for the past one and a half years, however, he did not know the address where accused used to reside. He only knew the area i.e. Jafrabad. Accused used to pay cricket with him at Moni Baba Mandir. At the time of incident, he was about 1314 years old. He denied the suggestion that the present case was a counterblast of an earlier altercation between him and the accused.
8. PW3 is HC Satpal Singh and was a formal witness. He has deposed that on 28.12.2001 he recorded the statement in DD register vide DD No. 15A and handed over the copy of the same to Ct. Mahesh Kumar for handing it over to SI Arjun Singh. Copy of the same is Ex. PW3/A.
9. PW4 is Prakash Jain. He has deposed that he is pursuing the business of thread and Complainant is his bhanja. He does not remember the exact date. However, 6 years back he had given Rs. 20,000/ to the Complainant at around the time of incident, for business purpose. He had not given any receipt in this regard due to regular business terms. The notes comprised of one bundle of Rs. 100/ denomination and two bundles of Rs. 50/ denomination. He was cross examined by Shri Z.B. Chauhan, Counsel for accused.
10. PW5 is Ct. Manoj. He has deposed that on 28.12.2001, he was posted with PS Bhajanpura as Constable. On that day, he was on duty from 8:00 AM to State Vs. Waseem @ Munna etc. Page 10 of 14 FIR No. : 460/2001 8:00 PM and on receiving information through DD No. 15A at 3:10 PM, he alongwith SI Arjun Singh reached at Ghonda Chowk where Vikas Jain, Arun and Ankit Jain @ Mani met him and informed that Rs. 2,40,000/ had been forcibly snatched from them by two persons namely, Waseem and Yusuf. The aforesaid money had been kept by those persons in a black colour polythene which was in possession of Ankit @ Mani. IO prepared tehrir and handed over to him for registration of FIR. He went to PS and got the FIR registered and came back at the spot and handed over the copy of FIR and original rukka to the IO. IO recorded the statement of complainant. Thereafter, he came back to the PS.
11. PW6 is Brij Bhushan. He has deposed that he is doing the business of thread and Vikas Jain, the Complainant is also doing the same business. He used to purchase threads from Vikas Jain and duly paid for the same. He stated that he had made the payment of Rs. 22,000/ to Vikas Jain, however, no receipt was issued to him for the same.
12. PW7 is HC Surender Kumar. He has deposed that on 04.01.2022, he was posted at PS Bhajanpura as Malkhana Munshi. On that day, by order of Shri Brijesh Kumar, Ld. MM, handed over two pullandas sealed with the seal of AS to IO Arjun Singh for photostat. One pullanda carrying Rs. 1,00,000/ and another carrying Rs. 1,40,000/ currency notes.
13. PW8 is Rajesh Kumar. He has deposed that he is running a dairy but he does not remember anything about this case. He was cross examined by Ld. APP for the State wherein he stated that he does not remember anything about the incident.
14. Another PW8 is Vikas Jain, the Complainant. He has deposed that on 28.12.2001, in the mid day time, he alongwith his brother in law Ankit Jain and his one friend were going on a bike bearing no. 3069 to make payment at State Vs. Waseem @ Munna etc. Page 10 of 14 FIR No. : 460/2001 Ghonda, Delhi. He was carrying cash of Rs. 2,40,000/ in a black coloured polythene. The notes were in different wades of Rs. 1,00,000/, Rs. 25,000/, Rs. 22,000/, Rs. 40,000/ and Rs. 58,000/ were of his shop collection and Rs. 1,00,000/ had been taken from Rajesh Dairywala. When he reached at Ghonda chowk, he received a call on his mobile phone and he parked his motorcycle at the side of road for taking the said call. Meanwhile, two persons came there and snatched the said polythene containing Rs. 2,40,000/ from his associates. They also manhandled them before snatching the said money. Police was called at the spot and police complaint Ex. PW8/A was made. Police took him to various places for recovery of his money. Thereafter, police intimated him that his robbed money had been recovered. He was thereafter, cross examined by Ld. APP for the State after taking permission from the Court wherein he stated that he had signed the complaint Ex. PW8/A after going through the same. During his crossexamination, Vikas Jain deposed that accused Yusuf got recovered Rs. 1,40,000/, out of which 104 currency notes were of denomination Rs. 500/, 13 currency notes of Rs. 100/ and 94 currency notes of Rs. 50/ denomination. Thereafter, IO prepared pullanda of recovered currency notes with black colour polythene and sealed the same with the seal of AS. Similarly, accused Waseem @ Munna got recovered Rs. 1,00,000/ from a drawer of his cot which were contained in an old polythene. The old polythene was containing 200 currency notes of Rs. 500/ denomination in a wade which was tagged with rubber band. The same was arranged by him from Rajesh Dairywala. The police prepared a pullanda of said recovered Rs. 1,00,000/ and sealed the same with the seal of AS. When attention of the complainant Vikas Jain was drawn towards accused Waseem, he failed to identify the accused person i.e. Waseem @ Munna, present in the court and stated that he had seen the State Vs. Waseem @ Munna etc. Page 10 of 14 FIR No. : 460/2001 accused long ago and he was not sure whether the person present in the court was accused, or not. Despite opportunity being given for crossexamination , no crossexamination of witness was done by Counsel for accused.
15. PW9 is Raju Kumar. He has deposed that Complainant Vikas Jain is his relative. On 04.01.2002, Shri Vikas Jain took Rs. 2,37,150/ by the directions of Shri Brijesh Kumar Garg, Ld. MM vide receipt already Ex. PW8/F bearing his signatures at point B.
16. PW10 is Inspector Arjun Singh, IO of the case. He has deposed that on 28.12.2002, he was posted at PS Bhajanpura as SI. On that day, he received DD No. 15A at about 3:10 PM. The said DD was regarding snatching of money. He alongwith Ct. Manoj Kumar went to Ghonda Chowk. There he met with Vikas Jain @ Mintoo alongwith Ankit Jain and Arun. Vikas Jain told him that two persons namely, Wasim and Yusuf had dropped Rs. 2,40,00/ which were kept in a plastic bag. The statement of Vikas Jain @ Mintoo was recorded which is Ex. PW8/A. He made endorsement on the statement and prepared a rukka which is Ex. PW1/B bearing his signatures at point B. He sent the rukka through Ct. Manoj for registration of FIR at PS Bhajanpura. Thereafter, he prepared site plan Ex. PW10/A bearing his signatures at point A. Thereafter, he recorded statement of witnesses Arun and Ankit. Thereafter, he searched for accused persons. Meanwhile, Ct. Manoj came back to the spot alongwith copy of FIR and asal tehrir. Thereafter, he also inquired public persons at the spot but none of them could tell about the accused persons. Thereafter, he returned to PS Bhajanpura. He was cross examined by Shri S.K. Tyagi, Counsel for accused. During his crossexamination, he stated that the spot is about 1½ Kms away from the police station. He reached at the spot at about 3:20 PM and left the spot at about 7:00 PM. The said spot was surrounded by shops and stalls. He State Vs. Waseem @ Munna etc. Page 10 of 14 FIR No. : 460/2001 inquired the shoppers regarding the said incident. He had formally inquired them, though he had not requested them to join the investigation as they are not material witnesses. He further stated that he does not remember whether house no. 93, Jammu Mohalla, Maujpur, Delhi comes within the jurisdiction of PS Bhajanpura, or not. He further stated that he does not remember if the main door of the aforesaid house was getting opened in which direction. He further stated that he did not ask any neighbor to join the investigation as it was late nighttime around 01:30 AM and people were sleeping. He further stated that he remained at the spot for about 1½ hours. The said case property was sealed by him. The place where accused Waseem was arrested was a crowded one. Landlord of aforesaid house was not residing there. The said plot consisting of 1012 room where tenants used to reside. The front road was 2025 feet wide. The said recovered money was counted and sealed by him. At about 05:30 AM, he left the spot and at about 05:45 AM, he reached the PS where the case property was deposited. He does not remember the time of departure from PS with respect to the present case. He further stated that at about 04:30 PM, Ct. Manoj went to PS alongwith the rukka and came back at about 05:30 PM, though he does not remember by what conveyance he went to the PS. At the time of arrest of accused Waseem, he was accompanied with two police constables in police uniform. He denied the suggestion that Ankit Jain had ill will against the accused Waseem or accused Waseem had been falsely implicated by Ankit Jain and Complainant in the present case to take revenge from the accused Wasim, in collusion with the investigating agency.
17. PW11 is ASI Ravinder Singh. On 28/29.12.2001, he was posted at PS Bhajanpura as Constable. He joined the investigation of the present case with IO SI Arjun Singh accompanied with Complainant Vikas Jain and searched State Vs. Waseem @ Munna etc. Page 10 of 14 FIR No. : 460/2001 the accused persons. Thereafter, they reached at house no. 93, Jammu Mohalla, Gali No. 7, Maujpur at the instance of the Complainant to search the accused Yusuf. They knocked at the door and 34 persons were present inside the room. Immediately, Vikas Jain pointed over accused Yusuf who had committed the robbery. Immediately, he was apprehended by IO alongwith him. In inquiry, he admitted his guilt and stated that out of the said amount of Rs. 2,40,000/, he had Rs. 1,40,000/ which he kept inside the almirah on the top rack in a black color polythene. IO recorded his disclosure statement already Ex. PW8/B bearing his signature at point B. Thereafter, he got recovered the said amount/money which he kept inside the almirah lying on the ground floor. He has deposed that he cannot tell the denomination of the said polythene amount, though the total amount inside the polythene was Rs. 1,40,000/. He searched the accused Waseem at the instance of accused Yusuf at Jagmal ka beda at Ghonda, Maujpur and pointed out towards the place where the accused Wasim had been residing. Immediately, the complainant Vikas Jain pointed out towards the associates of CCL Yusuf namely, Waseem (accused herein). He was also apprehended by the police staff and inquired accordingly. On inquiry, he disclosed his name as Waseem and admitted his guilt and got recovered Rs. 1,00,000/ out of the said robbed amount which he kept inside a bag lying in the said room. The said money was seized vide seizure memo Ex. PW8/E bearing his signatures at point C. His personal search was conducted vide personal search memo Ex. PW11/A bearing his signature at point A. The said Rs. 1,00,000/ were in 200 currency notes of Rs. 500/ denomination each and bearing a slip over it which mentioned Rajesh Dairywala, Purana Seelampur. Witness was cross examined by Shri S.K. Tyagi, Counsel for accused. During his cross examination, he stated that there was an informer who accompanied them and State Vs. Waseem @ Munna etc. Page 10 of 14 FIR No. : 460/2001 reached at house no. 93, Jammu Mohalla, Gali no. 7, Maujpur, Delhi.
18. PW12 is HC Rajeev Kumar. He has deposed that he was posted at PS Bhajanpura and looking after the work of MHC(M). He brought the original register no. 19 in which entry regarding the submission of case property vide seizure memo mark X and Ex. PW8/E had been made by then MHC(M) at mud number 2015 in case FIR no. 460/2001 PS Bhajanpura. Said case property was deposited by SI Arjun Singh on 29.12.2001. The xerox copy of the said document is Ex. PW12/A (OSR).
19. Statement of accused Waseem was recorded U/s 281 Cr.P.C. R/w section 313 Cr.P.C. on 24.02.2020, wherein he stated that he does not know anything about the incident, and he had been falsely implicated.
20. Final arguments were addressed on 22.11.2021. I have heard Ld. APP for the State as well as Ld. Counsel for accused Shri S.K. Tyagi. Evidence and documents on record perused carefully.
21. I have bestowed my thoughtful consideration to the rival submissions made before me.
22. Accused person is indicted for the offences U/s 392/411/34 IPC. Section 392 IPC provides punishment for committing robbery. Section 411 IPC provides punishment for dishonestly receiving and retaining any stolen property knowing or having reason to believe the same to be stolen property.
23. After appreciating the evidence and going through the testimony of the prosecution witnesses, this Court finds the accused guilty of the commission of offence punishable u/s 392/411/34 IPC for the following reasons: The case of the prosecution is that the accused Wasim @ Munna on 28.12.2001 at around 2:30 pm at Ghonda Chowk along with his associate State Vs. Waseem @ Munna etc. Page 10 of 14 FIR No. : 460/2001 (CCL sent to Juvenile Court) committed robbery of Rs. 2,40,000/ belonging to complainant to Vikas Jain. Further, Rs. 1,00,000/ belonging to the complainant Vikas Jain was recovered from the house of accused Wasim on 29.12.2001 which he had reason to believe was stolen property.
24. PW2 correctly identified the accused person in court during his deposition.
Further, he categorically stated that the accused Wasim gave 23 slaps to him and snatched the polythene bag from him containing the Rs. 2,40,000/ belonging to the complainant Vikas Jain. He further deposed that when the complainant Vikas Jain tried to intervene, accused persons gave him fist blows. His testimony remained unrebutted. Though in the cross examination, suggestion was put to him that the present case was filed as a counter blast to earlier altercation between him and accused Wasim, but nothing has been brought on record to prove the same.
25. Though PW Vikas Jain (complainant) has resiled from his previous statement during his deposition but has supported the prosecution version on material particulars. He has deposed that on 28.12.2001, he along with PW2 and his friend was going on motorcycle to make payment and was carrying Rs. 2,40,000/ in cash. At around Ghonda Chowk, he received a phone call and therefore, he parked his vehicle at the road side. Meanwhile, two persons came and started talking to PW2 and then suddenly the said two persons manhandled PW2. When he went to rescue, he was pushed by the said two persons as well. Thereafter, police was called and he made complaint Ex PW8/A bearing his signature at point A. Perusal of complaint Ex PW8/A clearly shows that the accused Wasim has been named by name by the complainant. He categorically admitted that he signed the same after going through it. Though the witness failed to recount the incident in sequence and there were quite a few inconsistencies in his statement with his previous State Vs. Waseem @ Munna etc. Page 10 of 14 FIR No. : 460/2001 statements to the Police, however, portion of his testimony in support of prosecution can be relied upon. Here it is important to mention that his deposition was recorded in the year 2013 whereas the incident happened in the year 2001. Hence, judicial notice must also be taken of the fact that with time witnesses are likely to forget the exact details of the incident.
26. PW Vikas Jain in his deposition before the court stated that he cannot surely depose if the Accused Wasim present in court is the same person who robbed him, however, he did admit that he had identified the accused in the police station and stated to the police that the accused Wasim along with his associate robbed him. Moreover, he also stated that the accused Wasim was younger at the said time and he had not seen him for many years. It must be read in the context that many years have elapsed since the incident.
27. Moreover, identity of the accused Wasim has been clearly mentioned in the FIR Ex PW1/A. FIR has been duly proved by PW1. No suggestion has been put forth that the FIR has been ante dated or otherwise manipulated. PW2 and PW10 have also identified the accused in court during their deposition. PW10 SI Arjun has deposed that on 28.12.2001, vide DD no 15A at about 3.10 pm information was received at police station regarding snatching of money. PW3 has proved the said DD entry. Thereafter, PW 10 SI Arjun along with PW5 Ct Manoj went to Ghonda chowk wherein he recorded statement of complainant Ex. PW 8/A which has been admitted by the complainant Vikas Jain. On the basis of said statement, rukka Ex. PW1/B was prepared and at around 4:50 pm on same day, on the basis of said rukka FIR Ex PW1/A was registered. Thus, there was no delay in the registration of FIR and at the first instance, name of the accused Wasim has been mentioned, thus eliminating the possibility of manipulation. Further, PW5 has also reiterated in his deposition that on receiving information vide DD no 15A at 3:10 pm dt State Vs. Waseem @ Munna etc. Page 10 of 14 FIR No. : 460/2001 28.12.2021, he along with PW10 went to Ghonda chowk wherein the complainant Vikas Jain gave statement regarding forcible snatching of Rs. 2,40,000/ by Accused Wasim and his associate. PW11 ASI Ravinder has also deposed in favour of prosecution on all material aspects.
28. In these circumstances, it has been proved by the prosecution beyond reasonable doubt that:
i. That Complainant, PW2 and his friend were carrying Rs. 2,40,000/ on 28.12.2001.
ii. At around 2:30 pm, Accused Wasim along with his associate forcibly removed from the possession of PW2, polythene bag containing Rs. 2,40,000/.
iii. In order of said removal and carrying away the cash, Accused Wasim and his associate, gave slaps to PW2 and fist blows to the complainant and thereby caused hurt to PW2 and the complainant.
29. The testimony of PW2 remained unrebutted throughout. The unimpeachable testimony of PW2 corroborated by the testimony of PW10 and PW11 proves the case of prosecution without any reasonable doubt. Further, on scrutiny of testimony of complainant, it is seen that though he may have resiled from his previous statements, but it does not mean that the whole of his statements should be turned down. Hence, the ingredients of section 392 IPC stand duly proved against accused Wasim.
30. Now, moving on to the prosecution case with respect to the offence under section 411 IPC against the accused. The stolen cash of Rs. 1,00,000/ out of Rs. 2,40,000/ has been recovered from the possession of Accused Wasim at his instance vide seizure memo ex PW8/E. PW10 and PW11 have categorically deposed so. PW8 Vikas Jain also correctly identified his signatures on the seizure memo Ex PW8/E and admitted that he signed the seizure memo in filled condition. He also admitted that he had gone through the same before signing the same. Further, he correctly identified the case State Vs. Waseem @ Munna etc. Page 10 of 14 FIR No. : 460/2001 property Ex P, P1 and P2 in his deposition. Nothing in cross examination has been brought out in the testimony of said witnesses by the accused to raise any doubt regarding the recovery of the Rs. 1,00,000/ from him nor any counter evidence has been led.
31. In view of the unrebutted testimony of the complainant with respect to recovery of stolen cash from the accused which has been duly corroborated by PW10 and PW11, the plea of defence put forth on behalf of the accused does not sustain.
32. Ld. Counsel for the accused persons also pointed out some of the discrepancies in the testimony of prosecution witnesses and argued that their testimony is not reliable. This court does not find any merits in the contention raised as there are minor discrepancies in the testimonies of PW Vikas, PW10 and PW11 but they are not material enough to wash out their credibility and taint the recovery from the accused. Hence, the ingredients of section 411 IPC stand duly proved against accused Wasim as recovery of stolen property of Rs. 1,00,000/ from the accused has been proved which he had kept knowingly despite having reasons to believe that such property was stolen property.
33. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution. It has been proved on record that the accused Wasim in furtherance of his common intention with his associate committed robbery of Rs. 2,40,000/ on 28.12.2001 belonging to the complainant and thereafter, knowingly kept Rs. 1,00,000/ out the said stolen property.
State Vs. Waseem @ Munna etc. Page 10 of 14 FIR No. : 460/2001
34. In view of the observations given above and the evidence led on record, this Court is of the view that the prosecution has successfully proved the case and established the offence charged u/s 392/411/34 IPC against the accused Wasim @ Munna by leading cogent evidence on record. Hence, the accused person namely Wasim @ Munna is found to be guilty for the offence U/s 392/411/34 IPC. Accordingly, accused Wasim @ Munna stands convicted for the offence u/s 392/411/34 IPC.
35. Copy of judgment be given free of cost to the accused person.
Rupinder Singh Digitally signed by Rupinder
Singh Dhiman
Dhiman Date: 2021.12.09 19:05:02
+05'30'
Announced in the (RUPINDER SINGH DHIMAN)
Open Court on 08.12.2021 Metropolitan Magistrate01
KKD Courts, Delhi
08.12.2021
It is certified that this judgment contains fourteen (14) pages and each page bears my signatures. Rupinder Singh Digitally signed by Rupinder Singh Dhiman Dhiman Date: 2021.12.09 19:05:15 +05'30' (RUPINDER SINGH DHIMAN) Metropolitan Magistrate01 NE/KKD Courts, Delhi 08.12.2021 State Vs. Waseem @ Munna etc. Page 10 of 14 FIR No. : 460/2001