Delhi District Court
State vs . Mohd. Jaquir @ Zakir on 26 May, 2016
IN THE COURT OF SH ARUN KUMAR GARG: MM04(SE)
/SAKET COURT: DELHI
State vs. Mohd. Jaquir @ Zakir
Unique Case ID: 02406R0011152016
FIR NO. : 1462/15
U/S : 457/380/511 IPC
PS : Govindpuri
JUDGMENT
a) Sl. No. of the case : 21/02/2016
b) Date of institution of the case : 12.01.2016
c) Date of commission of offence : 13.11.2015
d) Name of the complainant : Sh. Rizaul S/o Md. Tulla
R/o House No. TA218/3,
Tuglakabad Extn.,
Govindpuri, New Delhi
e) Name & address of accused : Md. Jaquir @ Zakir S/o. Mohd. Moinuddin R/o Vega Bond, Govindpuri Area, New Delhi
f) Offence charged with :U/s 457/380/511 IPC Judgment dated 26.05.2016 FIR No. 1462/15 PS Govindpuri State v. Md. Jaquir @ Zakir 1 of 15
g) Plea of the accused : Pleaded not guilty.
h) Arguments heard on : 12.05.2016 i) Final order : Acquitted j) Date of Judgment : 26.05.2016
BRIEF STATEMENT OF REASONS FOR DECISION:
1. On 13.11.2015, on the complaint of one Sh. Rizaul, an FIR no. 1462/15 was registered against the accused at PS Govindpuri u/s 457/380/511 IPC. On completion of investigation, charge sheet was filed against the aforesaid accused under Sections 457/380/511 IPC on 12.01.2016. As per charge sheet, allegations against accused persons are that on 13.11.2015 at about 05.30 AM at top floor of TA218/3, TKD Extn., New Delhi, the complainant had been Judgment dated 26.05.2016 FIR No. 1462/15 PS Govindpuri State v. Md. Jaquir @ Zakir 2 of 15 sleeping with his friends while keeping the door of the room unbolted. He suddenly woke up after hearing some noise and found the accused present in the room trying to steal the mobile phones. He alongwith his friend apprehended the accused and made a PCR Call. In the meantime public gathered at the spot and beaten up the accused. Police reached at the spot and complainant gave a complaint in writing to the police on the basis of which he FIR was registered. The accused was also handed over to the police.
The accused as accordingly charge sheeted under Sections 457/380/511 IPC. After compliance with the provisions of Section 207 Cr.P.C., charges under Sections 457/380/511 IPC were framed against the accused on 17.01.2013, to Judgment dated 26.05.2016 FIR No. 1462/15 PS Govindpuri State v. Md. Jaquir @ Zakir 3 of 15 which he did not plead guilty and claimed trial.
2.In order to prove its case, prosecution has examined seven witnesses, out of whom, PW1 to PW3 are alleged to be the witnesses. Complainant Rizual has been examined as PW1, whereas his friends Majibur and S.K.Sofi are examined as PW2 and PW3 respectively. DO HC Yadvir has been examined as PW4, whereas Ct. Ashok Kumar who had brought the rukka to Police Station and also joined investigation with IO SI Sunil Kumar was examined as PW5. First IO SI Jitender was examined as PW6 whereas the second IO has been examined as PW7.
3.Prosecution has relied upon the following documents which were tendered in evidence by the aforesaid witnesses:
Judgment dated 26.05.2016 FIR No. 1462/15 PS Govindpuri State v. Md. Jaquir @ Zakir 4 of 15 Ex. PW1/A: The complaint given by the complainant to SHO PS Govindpuri.
Ex. PW1/B : Arrest memo of the accused Ex. PW1/C : Personal Search memo of the accused Ex. PW1/D: Disclosure statement of accused Ex. PW4/A: Endorsement made by the DO on rukka. Ex. PW4/B: FIR No. 1462/15 dated 13.11.2015 PS Govindpuri.
Ex. PW4/C: Certificate u/s 65B of Evidence Act in support of FIR.
Ex. PW5/A : Identification memo of the spot. Ex. PW6/A : Rukka dated 13.11.2015 prepared by the IO. Ex. PW7/A: Site plan.
Thereafter, PE was closed vide order dated 30.04.2016 and the statement of accused U/s 313 Cr.P.C were recorded on 03.05.2016 after putting entire incriminating evidence to him .
Accused chose not to lead any evidence in his defence and Judgment dated 26.05.2016 FIR No. 1462/15 PS Govindpuri State v. Md. Jaquir @ Zakir 5 of 15 as such the matter was fixed for final arguments.
4. Final arguments on behalf of parties were thereafter heard on 12.05.2016. It is submitted by Ld. APP for state that prosecution has been able to prove its case beyond reasonable doubts through the testimony of PW1 to PW7 and as such accused should be convicted under Sections 457/380/511 IPC.
5. On the other hand, it is submitted by Ld. Legal Aid Counsel for the accused that the prosecution has failed to prove its case beyond reasonable doubts. She submits that the testimony of PW1 to PW3 the alleged eyewitnesses is contradictory in material particulars. She submits there is contradiction in testimony of PW1 to PW3 as to who had Judgment dated 26.05.2016 FIR No. 1462/15 PS Govindpuri State v. Md. Jaquir @ Zakir 6 of 15 seen the accused first. According to her, the production of case property by PW1 and PW3 in the Court is untrustworthy in as much as IO had failed to seize the alleged mobile phones. She submits that there is contradiction in the testimony of PW1 to PW3 as to whether or not the door of the room was properly bolted. Their deposition, according to he, is also contradictory to the complaint Ex. PW1/A and statements of PW2 and PW3 allegedly recorded by IO u/s 161 Cr.P.C. wherein it had been stated by the witnesses that the door was not bolted. According to her, admittedly as per the testimony of PW1 to PW3, no police official had visited the room where the accused had allegedly trespassed and attempted to commit Judgment dated 26.05.2016 FIR No. 1462/15 PS Govindpuri State v. Md. Jaquir @ Zakir 7 of 15 theft and entire paper work was done by the police in the police station. She thus submits that the accused has been falsely implicated in the present case and is entitled to be acquitted of all charges.
6.I have heard the submissions made on behalf of the parties and have also perused the record. In the present case, the allegations against accused are that on 13.11.2015 at about 5.30 am, he had trespassed in the room where the complainant alongwith his friends was sleeping and had attempted to commit theft of mobile phones of the residents. In support of its case prosecution examined PW1 to PW3 who were allegedly the eyewitnesses to the said incident. In my considered opinion, there are material contradictions in Judgment dated 26.05.2016 FIR No. 1462/15 PS Govindpuri State v. Md. Jaquir @ Zakir 8 of 15 the testimony of PW1 to PW3 as to who had noticed the accused first in the room. In the complaint Ex. PW1/A, PW1 had alleged that he woke up after hearing noise and feeling some activity and noticed the accused whereupon he raised a hue and cry and his other friends PW2 and PW3 also woke up and he with the help of his friends apprehended the accused. However, during his examination in chief, it was deposed by him that his friend Majibur woke up first to urinate and on hearing of his shouting, he also woke up. The aforesaid stand is contradictory to the stand taken by him in his complaint Ex. PW1/A.
7.On the contrary, PW2 Majibur during his examination in chief has stated that he woke up after hearing some noise Judgment dated 26.05.2016 FIR No. 1462/15 PS Govindpuri State v. Md. Jaquir @ Zakir 9 of 15 and noticed the accused. He did not say that he woke up to urinate as was the statement of PW1. During his cross examined, he had taken an altogether new stand and deposed that at first accused was noticed by PW1 Rizual and PW3 Safiq. Now, coming to the testimony of PW3 Safiq, it was deposed by him during his examination in chief that he being a patient of asthma woke up due to asthmatic problem and when tried to pickup his phone, he noticed the accused and raised an alarm, whereupon PW1 and PW2 also woke up.
8.The testimony of aforesaid witnesses regarding the status of door of the room is also not free from contradictions. Though as per the complaint Ex. PW1/A and the statements Judgment dated 26.05.2016 FIR No. 1462/15 PS Govindpuri State v. Md. Jaquir @ Zakir 10 of 15 allegedly recorded by IO of PW2 and PW3 u/s 161 Cr.P.C., the door was not bolted, but during his cross examination PW1 deposed that the door was not properly bolted. On the contrary, PW2 during his crossexamination deposed that door of the room was bolted from inside. PW3, during his crossexamination has deposed that bolt of the door was not open.
9.Even after examination of as many as seven witnesses, no answer could be found as to how the accused had entrede inside the room. IO had not carried out any investigation on the aforesaid aspect. What is more shocking is that as per the statements of PW1 to PW3, IO had never visited the room where the alleged trespass and attempt of theft took Judgment dated 26.05.2016 FIR No. 1462/15 PS Govindpuri State v. Md. Jaquir @ Zakir 11 of 15 place at any point of time and entire paper work including the giving of complaint by the complainant to the police had taken place at the police station, though the IO and other police witnesses had tried to make up a story that they had visited the spot and entire documentation other than the registration of FIR had taken place on the spot. The testimony of IO and other police witnesses in this regard is wholly unreliable in as much as none of the police witnesses could depose about the number of floors in the building and number of rooms on the floor where the the incident had taken place.
10.There can be no manner of doubt that the offence of theft as also the attempt of theft can only be in relation to some Judgment dated 26.05.2016 FIR No. 1462/15 PS Govindpuri State v. Md. Jaquir @ Zakir 12 of 15 movable property, which in the present case is alleged to be mobile phones of the complainant and his friends. Interestingly, IO has failed to take any steps for seizure of the said mobile phones. No explanation has been given by him for nonseizure of the case property i.e. mobile phones.
11.As per the own case of the prosecution a number of public persons gathered on the spot and had even beaten up the accused, but IO had failed to take steps for joining of any public witness. A bare perusal of testimony of PW5 and PW7 shows that they did not remember anything.
12.The aforesaid contradictions in the testimony of PW1/1 to PW1/3 as to who had seen the accused first and the status of the door of room where the incident had allegedly taken Judgment dated 26.05.2016 FIR No. 1462/15 PS Govindpuri State v. Md. Jaquir @ Zakir 13 of 15 place, coupled with the fact that no attempt was made by IO to join public/independent witnesses during investigation and his failure to seize the case property without any plausible explanation renders the entire case of prosecution doubtful.
13.In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the story of the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
14.In the case in hand, there are several contradictions/deficiencies/lacunae in the prosecution story Judgment dated 26.05.2016 FIR No. 1462/15 PS Govindpuri State v. Md. Jaquir @ Zakir 14 of 15 which are giving rise to serious doubts about the veracity of the case set up by the prosecution and hence, in my considered opinion, accused is entitled to benefit of doubt.
15.Thus, the accused is hereby acquitted of charges under Sections 457/380/511 IPC.
16.Ordered accordingly.
Announced in the open court on this 26th day of May, 2016. This judgment consists of 15 signed pages.
(Arun Kumar Garg)
MM04(SE)/Delhi /26.05.2016
Judgment dated 26.05.2016
FIR No. 1462/15 PS Govindpuri
State v. Md. Jaquir @ Zakir 15 of 15