Delhi District Court
State vs 1. Mohd. Sameer @ Amir on 10 November, 2017
IN THE COURT OF SHRI RAKESH TEWARI,
DISTRICT & SESSIONS JUDGE (EAST)
KARKARDOOMA COURTS, DELHI
SC No. 562/16/15
FIR No. 27/2015
PS : Pandav Nagar
U/s 395/365/34 IPC
State Versus 1. Mohd. Sameer @ Amir
S/o Mohd. Farhim
R/o H.No. 251/A48, Shriram Nagar
Gullushah Taikiya, Shahdara, Delhi.
2. Mohd. Amir
S/o Mohd. Shamim
R/o H.No. A4/53, Swarn Jayanti Park,
Tikri Khurd, Delhi.
Date of Institution : 13.07.2015
Date of Judgment reserved : 30.10.2017
Date of Judgment : 10.11.2017
J U D G M E N T
1.The case of the prosecution in brief is that on 07.01.2015, a complaint was received on the Mail ID of SHO from one Vishwajeet Sirish Kumar Yadav, who is on training in National Academy of Audit and Accounts, Shimla and had come for SC No.562/16/15 State Vs. Mohd. Sameer @ Amir & another Page No.1 of 16 training at International Centre for Information System and Audit at Sector 62A, Noida, U.P. since 04.01.2015 and that on 06.01.2015, he wanted to go to Mumbai by airplane in connection with the marriage of his sister and on 06.01.2015 at about 5.25 p.m the driver, namely, Ashu had taken him from the said institute at Noida at 5.30 a.m. to airport and within 510 minutes, the vehicle came to the main road and thereafter they moved towards Delhi. Then another Taxi chasing them came near to their vehicle from which a person wearing jacket like that of Delhi Police asked the driver Ashu to stop but the driver ignored him and that thereafter the said taxi chasing the vehicle came in front of their vehicle due to which his vehicle stopped and thereafter from the said Taxi, one person sitting on the front seat came out and asked the driver Ashu to show his driving licence as he was from Delhi police, on which driver Ashu downed the window of his car and the said person took out a revolver and keep the same at the head of driver Ashu and forcibly opened the door of the car and pushed the driver Ashu on the back seat and that in the meantime, three other persons from the said taxi came and entered his car and out of those four persons, one person sat on the driver seat and the person showing the revolver sat on the front seat of the said driver and he pushed the driver Ashu and two persons took out a revolver and SC No.562/16/15 State Vs. Mohd. Sameer @ Amir & another Page No.2 of 16 threatened him due to which he became perplexed and could not assess as to what the said persons were demanding and thereafter those persons started moving the vehicle of the complainant and took Uturn and the persons sitting on the back side by both sides of the complainant asked him to hand over the money, mobile and other things to them and at that time, the person sitting at his right side, placed the revolver at his temporal region and started threatening him and thereafter gave fist blows at his mouth due to which blood oozed out and thereafter they started beating his driver Ashu also and he became afraid of them and started giving things to them containing in a black bag wherein one laptop, one mobile, one old mobile, earphone, mobile charger, laptop charger and some important papers and they also took out the mobile from his pocket and old mobile charger and laptop from the said bag and thereafter they demanded his purse containing three ATM Cards and Rs.5,200/ in cash and after taking ATM cards, they asked his PIN number and on refusal, threatened to kill them and out of fear, he disclosed the PIN numbers of all the three ATM cards and the person sitting towards his right side, wrote down the PIN numbers on a piece of paper and this happened for ten minutes and during this period, he did not know as to where his vehicle was going and thereafter, they stopped the vehicle in front of the ATM of ICICI Bank and the person who had written SC No.562/16/15 State Vs. Mohd. Sameer @ Amir & another Page No.3 of 16 the PIN numbers went out of his vehicle and entered in the ATM and after about 5 or 10 minutes, he came back. He throw all the three ATM Cards and he gave back the SIM cards and memory card of his mobile to him and started the vehicle again. Thereafter, the person sitting towards his left side demanded mobile password and laptop password and out of fear, the same were also given and in the meantime, the vehicle came on the main road and was proceeding towards Delhi and during this time, they also took money purse of the driver Ashu and tried to snatch cash money also and that due to fear, he was bagging to leave him free from them and they again reached almost at the spot where for the first time, they got stopped his vehicle and those four persons went out of the vehicle and threatening at the point of revolver not to tell the incident anywhere otherwise, he would be killed and asked him to go away from there and thereafter, his driver Ashu started proceeding towards Delhi and at about 07.10 a.m., his vehicle reached Delhi Airport Terminal3 from where he went to Mumbai and thereafter he gave description of those four persons and details of mobile phone, laptop, mobile charger, laptop charger, cash in the money purse, ATM cards and on this complaint, SI Vijay Kumar made his endorsement and got the FIR registered.
2. During investigation on 08.01.2015, the said SI recorded SC No.562/16/15 State Vs. Mohd. Sameer @ Amir & another Page No.4 of 16 the statement of driver Ashu/Ashutosh and at his instance site plan was prepared and search for goods, property and accused were made and made a request to the Manager of the ICICI Bank of Sector 28, Vaishali, Ghaziabad, UP for CCTV footage and that on 13.1.2015, the said complainant came to the police station and gave his statement in writing and he added that his wrist watch was also taken by the said persons in the incident and on 26.2.2015, the said bank manager of ICICI Bank refused to provide CCTV footage.
3. During further investigation on 10.03.2015, vide DD No.36A, an information was received that accused Mohd. Amir was arrested by the Special Staff, South District in case FIR No.175/15 PS Kotla Mubarakpur, Delhi, who had made a disclosure statement regarding incident of present case, on which the said SI obtained all the documents from the said Special Staff of South District and on 16.03.2015, accused Mohd. Amir was got produced before the concerned court through production warrants. On 18.03.2015, after permission of the court, he was arrested and kept in muffled face and was sent to judicial custody but accused Mohd. Sameer @ Amir could not be produced. Again his production warrant was got issued and he was produced in the concerned court on 21.3.2015 and after permission from the concerned Magistrate, he was also arrested, SC No.562/16/15 State Vs. Mohd. Sameer @ Amir & another Page No.5 of 16 kept in muffled face and was sent to judicial custody. Further, date for conducting the TIP of accused was got fixed on 27.3.2015 but both the accused were not available at Central Jail, Tihar and thereafter on 1.4.2015, police remand of accused Mohd. Amir was taken for one day, who pointed out the place of occurrence as well as ATM from where money was withdrawn and on 4.4.2015, one day police custody remand of accused Mohd. Sameer @ Amir was taken, who also pointed out the place of occurrence and the said ATM. Thereafter TIP was got fixed for 15.4.2015, in which the witness Ashutosh/ Ashu identified both the accused in the TIP and on 2.5.2015, again TIP was got fixed and the complainant Vishwajeet Yadav reached for TIP but both the accused refused to join the TIP. The other accused, namely, Akram, Sarfaraz and Danish could not be arrested by that time and out of whom Danish was driving the said taxi in which the said four persons had come and during the incident the said Danish was following the vehicle of the complainant. No recovery of case property could be effected and after completion of investigation, charge sheet was filed.
4. On the basis of said charge sheet, my Ld. Predecessor, vide his order dated 20.08.2015, framed charges against both the accused U/S 395/365/34 IPC to which they pleaded not guilty and claimed trial.
SC No.562/16/15 State Vs. Mohd. Sameer @ Amir & another Page No.6 of 16
5. Prosecution has examined ten witnesses in its support which have been discussed below.
6. The statements of the accused were recorded U/s 313 Cr.PC, who pleaded their innocence and alleged that they have been falsely implicated in this case, he was not kept in muffled face and have got no concern with the present case and was lifted by the police on 1.3.2015 in the morning from the house of his Bua Rukshana and was at his home alongwith his family members on 6.1.2015 at the time of incident.
7. Thereafter, accused produced in his defence DW1 Smt. Ruksana, who is Aunt of accused Mohd. Amir, who deposed that on 1.3.2015, accused Mohd. Amir was lifted by the police from her house at Kolkatta, West Bengal in the morning at 10.00 a.m. or 11.00 a.m. and that accused Mohd. Amir had come to her house from Delhi 15 days before the said date i.e. in the month of February, 2015 and that on her query, police told her that they were taking Mohd. Amir for some enquiry and they would leave him thereafter and at that time, daughter in law Ruby and herself were present there and when he enquired from the police, they informed her that they have sent the accused to Jail and they did not allow her to meet him and that they also informed her that accused Mohd. Amir had been taken to Delhi. In her cross examination by the ld. PP for the state, she could not tell the SC No.562/16/15 State Vs. Mohd. Sameer @ Amir & another Page No.7 of 16 address of her brother at Delhi and she also answered that her neighbour had informed regarding taking of accused Mohd. Amir to Delhi by the police to her brother Mohd. Shamim and that she had enquired from the police as to what for, accused was being taken to the police to which police replied that accused had to be interrogated and thereafter he would be set free. She replied that she came to know at Kolkata that accused was not set free as there was a case against the accused, but she did not know about the said case. She did not know about the present case. She replied that she did not lodge any report with Kolkata police regarding taking of accused Mohd. Amir by the Delhi Police to Delhi from her house on 1.3.2015. She replied that mother of accused informed her on phone that she had to appear as a witness on the day of her deposition in the court. She admitted that between 1.3.2015 till date of her deposition, she had not given any written complaint either to local police of Delhi or senior police officers of Delhi Police regarding the fact of accused brought from Kolkata to Delhi on 1.3.2015.
8. I have heard the Ld. Chief Prosecutor of the State and Sh.A. K. Bali, ld. Counsel from DLSA and perused the record.
9. Taking the official witnesses first, PW1 W/HC Rajni was the duty officer, who has proved the copy of the FIR as Ex.PW1/A. PW3 Ct. Nitin took the accused Mohd. Amir to LBS SC No.562/16/15 State Vs. Mohd. Sameer @ Amir & another Page No.8 of 16 Hospital for his medical examination and thereafter IO prepared the pointing out memo whereby the said accused pointed out the spot and the said ATM and the memo is Ex.PW3/A. In his cross examination on behalf of accused, PW3 replied that no public person was joined as a witness at the time of preparation of pointing out memo and that place pointed out by the accused is a public place.
10. PW4 Ct. Suresh is the witness of pointing out of the spot and the said ATM by the accused Mohd. Sameer @ Amir on 4.4.2015 vide memo Ex.PW4/A. In his crossexamination on behalf of accused, he replied that IO had not called any public witness from the neighbour area at the time of preparation of pointing out memo. PW5 Ct. Ravish Kumar, is the witness of arrest of accused Mohd. Amir in the court on 18.3.2015 and disclosure statement made by the said accused is Ex.PW5/C and the fact of accused kept in muffled face. He is also the witness of arrest of accused Mohd. Sameer @ Amir in the court on 21.3.2015 and his disclosure statement is Ex.PW5/F. In his cross examination, he replied that IO had not requested any court staff or public person present in the court to join the proceedings. PW6 SI Jeet Singh was in the Special Staff, South East, Delhi, who was the IO of the case FIR No. 175/15 PS Kotla Mubarakpur and he arrested the accused Mohd. Amir on 3.3.2015 at West Bengal SC No.562/16/15 State Vs. Mohd. Sameer @ Amir & another Page No.9 of 16 and he recorded the disclosure statement of said accused as Ex.PW6/C and he also deposed that accused had also got recovered the stolen property of different cases, which was seized under Section 102 Cr.P.C. vide memo Ex.PW6/D and that he had informed the official of PS Pandav Nagar regarding his arrest and disclosure on 10.3.2015 and he had handed over the copy of disclosure statement and other documents to the IO of the present case. In his crossexamination on behalf of the accused, PW6 replied that he did not remember as to whether he had filed the traveling ticket to West Bengal in case FIR No.175/15 of PS Kotla Mubarakpur and he did not remember the name of railway station where they completed their journey but he again said it was Howrah. He replied that he made arrival entry at PS Bagichi, West Bengal but he did not remember the date of the same and that he had also taken two local police officials from PS Bagichi, but he did not remember their names. He admitted that he had not made the said police officials of West Bengal Police as witnesses in the arrest proceedings of accused Mohd. Amir nor he made any local person as the witness in the proceedings. He did not remember, if he had filed any document pertaining to their return from journey.
11. PW7 HC Dharam Pal was duty officer on 10.3.2015, who had received an information vide DD No.36A from Special Staff SC No.562/16/15 State Vs. Mohd. Sameer @ Amir & another Page No.10 of 16 South East, which is Ex.PW7/A. PW8 is the concerned MM, who proved the TIP proceedings of accused Mohd. Amir as Ex.PW8/A and that of accused Mohd. Sameer @ Amir as Ex.PW8/B on 2.5.2015 and he further deposed on 15.4.2015 he again went to the Tihar Jail for TIP of the said two accused. Accused Mohd. Amir and Mohd. Sameer @ Amir were correctly identified. The TIP proceedings of accused Mohd. Amir is Ex.PW8/D and that accused Mohd. Sameer @ Amir refused to join the TIP vide TIP proceedings Ex.PW8/E and the said witness was not crossexamined on behlf of accused.
12. PW10 SI Vijay Kumar was the IO of the case, who deposed regarding the said investigation conducted by him in his examination in chief and in his cross examination on behalf of accused, he admitted that no public person was joined by the Special Staff, South East District regarding arrest and disclosure statement of both the accused as per record, which he had received nor he joined any public person in his investigation in any proceedings.
13. Coming to the deposition of two victims/ eye witnesses. PW9 Ashutosh although narrated the facts in his examination in chief as narrated above but he could not identify the accused as offenders due to lapse of time.
14. PW2 Vishwajeet Yadav is the complainant in the present SC No.562/16/15 State Vs. Mohd. Sameer @ Amir & another Page No.11 of 16 case, who deposed in his examination in chief on the same lines as per the contents of the said FIR and he further deposed that two out of four persons were present in the court on the day of his deposition and he pointed out towards the accused Amir as the person, who took over the control of his car and drove the car towards the ATM and returned back at the spot. He pointed out towards the accused Sameer and identified him as the person sitting on the back seat of the car wearing one jacket and showed him the revolver and threatened him and he further deposed that accused had robbed his wrist watch and gold ring from his hands. He further deposed that he had sent an email to the police through one of his known person which is Ex.PW2/A (objected to by the ld. Defence counsel). He further testified that on 13.1.2015, he came to Delhi and went to PS and that his statement was recorded by the IO and that he had also given additional complaint to the IO in his handwriting and the same is Ex.PW2/B and that on 2.5.2015, he was called at Tihar Jail to participate in the TIP proceedings but the accused refused to join the TIP proceedings.
15. In his crossexamination on behalf of accused, PW2 admitted that he had not informed the Delhi Police on the day of incident i.e. on 6.1.2015. He replied that he had sent his information of complaint regarding the incident with him from SC No.562/16/15 State Vs. Mohd. Sameer @ Amir & another Page No.12 of 16 email which he forwarded to his representative Sh. Hitesh on the next day i.e. on 7.1.2015. He admitted not to have sent the email/ complaint directly to the police as he was not aware about the jurisdiction of the area of the concerned police station. He replied that he met the Delhi Police for the first time on 13.1.2015 at PS Pandav Nagar. He replied that he had sent the email from his personal computer. He admitted not to have provided hard disc of his computer containing email. He admitted that he had not mentioned his wrist watch and gold ring robbed from his hand in the said email. He replied that police has not shown him any photograph of the suspected accused person in the police station on 13.1.2015. He replied that police had informed him regarding arrest of accused after about two or 21/2 months. He replied that he was informed about the TIP about 11/2 week prior to 2.5.2015 by the IO and that he had come to Delhi on 30.4.2015.
16. In the present case, the complaint of the alleged incident was sent on 7.1.2015 through email but the person, who sent the email, namely, Hitesh has not been produced as a witness in the case nor any certificate under Section 65(B) of Indian Evidence Act has been proved on record.
17. There are two alleged victims/eye witnesses of the case and PW2 Vishwajeet Yadav is the complainant, who met for the first time to the police on 13.01.2015 and improved his version by SC No.562/16/15 State Vs. Mohd. Sameer @ Amir & another Page No.13 of 16 saying that his gold ring and wrist watch were also robbed in the incident. Thus, not only there is delay in reporting the case but there is improved version given by the PW2 in his examination in chief before the court. No hard disc of the personal computer was handed over to the police or examined during the investigation.
18. The accused were admittedly arrested in another case FIR No.175/15 PS Kotla Mubarakpur on 3.3.2015 and they were arrested in the present case through production warrants on 18.3.2015 and 21.3.2015 respectively. Thus, the accused were arrested in the case after about more than two months.
19. On 1.4.2015, one day PC remand of accused Mohd. Amir was taken by the police and on 4.4.2015 one day PC remand of accused Mohd. Sameer @ Amir was taken and on 15.4.2015, TIP of both the accused was got conducted in which the other witness PW9 Ashutosh identified both the accused in the TIP and on 2.5.2015, again TIP was got fixed from the complainant PW2, wherein accused refused to join the same on the ground that their photographs were taken by the IO/ staff in the police station and that they were shown to the witness also when they were taken in the police custody. Thus, it is clear on record that police custody remand of both the accused was taken prior to their TIP and the possibility of their identity already disclosed to the witnesses, cannot be ruled out and the said act of taking the police remand SC No.562/16/15 State Vs. Mohd. Sameer @ Amir & another Page No.14 of 16 prior to the TIP, support the version of accused as mentioned above and they were justified in refusing to join the TIP.
20. So far so the PW9 Ashutosh is concerned, though he had identified both the accused in the TIP, but before the court, he failed to identify both the accused.
21. In the said circumstances, now remains the sole testimony of PW2 Vishwajeet Yadav, the complainant. It is no rule of law but rule of prudence that sole testimony must be judged from its corroboration by the other facts proved on record. The testimony of PW2, is not corroborated by the deposition of PW9 Ashutosh, who was driver of the car in which the accused allegedly robbed the PW2 with other three persons, as he failed to identify the accused before the court. Admittedly, there is no recovery of any of the articles allegedly robbed by the accused at the point of revolver nor revolver has been recovered.
22. It is the case of the complainant PW2 that they were abducted to the ATM and he was forced to disclose the PIN numbers of his ATM Cards and the accused withdrew the amount from the ATM but no investigation has been carried out in this regard nor any bank record or record of ATM machine could be produced before the court to corroborate the version of PW2.
23. In view of delayed recording of statement of PW2 on 13.1.2015, arrest of accused after a gap of more than two months, SC No.562/16/15 State Vs. Mohd. Sameer @ Amir & another Page No.15 of 16 obtaining of police remand before the TIP of accused, failure of PW9 to identify the accused before the court and in the absence of any corroboration to the deposition of alleged victim, the PW2, I am not inclined to rely upon the sole testimony of PW2 and as such, I am of the considered opinion that prosecution has miserably failed to bring home the guilt of the accused beyond reasonable doubt and they are acquitted of the charge for the offence under Section 395, 365/34 IPC. Their PB and SB are discharged.
The File be consigned to record room.
Announced in open court
on 10.11.2017 (RAKESH TEWARI)
District & Sessions Judge (East)
Karkardooma Courts, Delhi
SC No.562/16/15 State Vs. Mohd. Sameer @ Amir & another Page No.16 of 16