Delhi District Court
Fir No. 380/11; State vs . Ashdul @ Mohd. Azad & Anr. Page 1 Of 25 on 23 March, 2013
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 12/12
FIR No. 380/11
P.S. Subhash Place
U/S: 392/397/34 IPC
STATE
Versus
(1) ASHDUL @ MOHD. AZAD
s/o Mohd. Abdul
r/o 30 foota road, Ashok Vihar,
Loni, Ghaziabad, UP
(2) KARAM ALI (PO)
s/o Sattar Ali
r/o 30 foota road, Ashok Vihar,
Loni, Ghaziabad, UP
Date of Institution: 07022012
Date of arguments: 23032013
Date of judgement: 23032013
JUDGMENT
1. The case of the Prosecution, in brief, is that on 11102011 on receipt of DD no. 35A, ASI Madan Mohan along with Ct. Rajpal reached at Road no. 43, Rani Bagh Road, near ABlock FIR No. 380/11; State Vs. Ashdul @ Mohd. Azad & Anr. Page 1 of 25 toilet, where complainant Mahender Singh met them and gave his statement. In his statement, complainant stated that he was doing the business of making plastic toys from his house. On 10102011 between 4 to 5 pm, he received four missed calls from mobile number 8447780415 on his mobile number 9818992196. When complainant called back, one Raju received the phone call and inquired from complainant whether he deals in plastic business and when complainant replied in affirmative, the said Raju offered to supply plastic dana to complainant on cheaper rates. A meeting was fixed at Shakurpur, Rani Bagh Road with Raju. On 11102011 at about 11 am, complainant called Raju and informed him that he was going to Poonth Kalan to purchase plastic dana and asked Raju to meet him near Shakurpur khatta. At about 2 pm, complainant Mahender Singh reached near the Khatta in his WagonR car bearing no. UP13W2900. Complainant called at phone no. 8447780415 and informed that he had reached there. In the meantime, two boys in the age group of 1920 years having dark complexion and looking Bengali type, came there and knocked the door of the car. Complainant opened the lock. One of the boys sat on the front seat and one boy sat on the rear seat. The boy who sat on the front seat, took out Rs. one lac from the left side pocket of FIR No. 380/11; State Vs. Ashdul @ Mohd. Azad & Anr. Page 2 of 25 pant of complainant and another Rs. one lac was taken out from the dashboard of the car. The boy who was sitting on the back seat put knife on the complainant. Thereafter, both the boys got off the car and ran in the streets. Police was informed and FIR u/s 356/379/34 IPC was registered. On 10122011, accused Ashdul @ Mohd. Azad was arrested at the instance of secret informer. In his disclosure, Ashdul disclosed that he committed the crime along with one Raju at the instance of his brotherinlaw Karam Ali. Accused Karam Ali and Raju could not be arrested and accused Karam Ali was declared PO. After completion of investigation, chargesheet was filed in the court u/s 392/34 IPC against accused Ashdul @ Mohd. Azad.
2. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 392/34 IPC was framed against accused Ashdul @ Mohd. Azad to which he pleaded not guilty and claimed trial.
3. In order to prove its case, Prosecution examined ten witnesses. Statement of accused Ashdul @ Mohd. Azad was recorded u/s 313 Cr.P.C. therein he denied all the allegations made against him. Accused opted not to lead defence evidence.
4. I have heard Ld. Amicus Curaie and Ld. APP for State FIR No. 380/11; State Vs. Ashdul @ Mohd. Azad & Anr. Page 3 of 25 and have perused the written submissions and entire records.
5. Ld. Amicus Curiae for accused argued that as per Prosecution case, the complainant received four missed calls on his mobile phone and when complainant called back, one Raju received the phone call. Raju has not been arrested with whom the complainant had a talk on phone. The complainant/ PW1 did not sign the site plan whereas PW1 stated in his crossexamination that he had signed the site plan. IO reached at the spot at 4 pm whereas PW1 stated that he left the spot about 2:30 pm. PW4 is the main witness as he was with the first and second IO and PW4 became hostile. There is no evidence that accused committed the offence as charged. There are major contradictions in the testimony of PW1 and the police official witnesses. No public witness was joined at the time of arrest. Even otherwise, there is no recovery from the accused. The first and second IO did not record any departure and arrival entry in DD register. The accused has no connection with the mobile phone. The accused was not arrested as stated by the second IO but the complainant hit the bicycle of the accused at Madhuban Chowk, Rohini and some altercation and heated arguments had taken place between them and the accused told the complainant that he will lodge a complaint against him and FIR No. 380/11; State Vs. Ashdul @ Mohd. Azad & Anr. Page 4 of 25 due to this fear, the complainant has got the accused implicated in a false case in connivance with the police. The Ld. Amicus Curiae has also filed his written submissions and relied upon the judgement reported in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622; Balraj Singh Vs. The State of Punjab, 1976 Crl.L.J. 1471 (DB); Tika Vs. State of UP, AIR 1974 SC 155; Bhkari Vs. State of UP, AIR 1966 SC 1; Daulat Ram Vs. State of Haryana, AIR 1995 SC (1998); Sahib Singh Vs. State of Punjab 1997 Crl.L.J. 2978; Sompal Vs. State of Delhi 1999 Crl. L. J. 19; State of Rajasthan Vs. Tej Singh 2001 (II) AD SC 125; Raj Kumar & Anr. Vs. State (Delh) 1991 (2) CC Cases 497 (HC) (DB) and Ramesh Kumar Vs. The State (Delhi Admin) 1990 Crl. L. J. 255 (DB Delhi).
6. Ld. APP for State argued that it has to be seen whether the public witness has supported the case or not and it is proved on record that the witnesses have supported the case of the prosecution. The accused refused to participate in TIP. The accused has also been identified by the complainant. If new fact is discovered, it has to be seen and considered. Call details, phone numbers, their locations, there CDRs are on record. PW1 is the natural witness and nowhere it appears that the testimony of PW1 is FIR No. 380/11; State Vs. Ashdul @ Mohd. Azad & Anr. Page 5 of 25 shaken. The Ld. APP for the State further argued that if complainant hit the bicycle of the accused at Madhuban Chowk, Rohini and he got the accused implicated in a false case in connivance with the police, the burden of proving the aforesaid facts was upon the accused but the accused has not proved such facts on record. In this regard, Ld. APP has referred Section 106 of the Evidence Act. The Ld. APP also argued that why the complainant shall implicate the accused in this case if he has no concern with him. The Ld. APP for State, in support of his arguments, relied upon the judgements reported in the case of Paramjeet Singh @ Pamma Vs. State of Uttarakhanda, AIR 2011 SC 200; Dhanaj Singh alias Shera and others Vs. State of Punjab, AIR 2004 SC 1920 and Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J. 2653(1).
7. In view of the above arguments of the Ld. Amicus Curiae and the Ld. APP for the State, let us examine the evidence led in this case as to whether the accused had committed the offence as charged or whether he has been falsely implicated. PW1 Mahender Singh stated in his examination in chief that on 10.10.2011, during the time between 4-5 pm, he received four missed calls on his mobile no. 9818992196 from mobile no. 8447780415. Thereafter, he called back on the said mobile number from his mobile and a FIR No. 380/11; State Vs. Ashdul @ Mohd. Azad & Anr. Page 6 of 25 person by the name Raju attended his call and made inquiry from PW1 whether he was doing the business of plastic moulding. PW1 replied in positive and he told PW1 that he will supply large quantity of plastic dana to him on reasonable price. PW1 also informed him that he also used to prepare small toys, hence he will meet him on the next day. Next day i.e. 11.10.2011 at around 11 am, PW1 made a call to aforesaid Raju and informed him that he was going to Pooth Kalan to purchase plastic dana, so he could contact PW1 at Rani Bagh Road, near Shakurpur Khatta. PW1 went to the aforesaid place in his Maruti WagonR car bearing No. UP13W2900 and reached there at 2 pm. Thereafter, PW1 made call to Raju informing him that he had reached there and asked him to come there. Two boys came there and one of them knocked the windowpane of his car. PW1 opened the lock of his car. After opening the door of the car, one of the boys sat by the side of PW1 and another boy sat on the rear seat. The boy who was sitting on the rear seat, put knife on the back of PW1. The boy who sat with PW1 on the rear seat, put his hand in left pocket of pant of PW1 and removed two bundles of Rs. 500/ denomination (total Rs. 1 lac) and two bundles of the aforesaid description, which were kept by PW1 on the dashboard of the car. Thereafter, both the boys came out from the car of PW1 and FIR No. 380/11; State Vs. Ashdul @ Mohd. Azad & Anr. Page 7 of 25 ran towards street. PW1 also chased them but could not apprehend them.
8. PW1 further deposed that Thereafter, PW1 made a call at 100 number. ASI Madan Mohan came at the spot from PS Subhash Place. SI Ajit Singh also reached there and he brought PW1 to the PS. Statement Ex. PW1/A of PW1 was recorded by the police at the spot. SI Ajit Singh interrogated PW1 in the police station on the same day. SI Ajit Singh also prepared the site plan of the place of occurrence at the instance of PW1. PW1 borrowed the aforesaid amount of Rs. 2 lacs on interest @ 2% p.m. from Ram Bahadur Singh. PW1 went to Tihar Jail after about 2½ - 3 month of the incident to participate in the TIP proceedings of accused but he refused to participate in the TIP proceedings. Later on, PW1 came to Rohini Court to identify the accused apprehended by the police in the present case as per the direction of the court. PW1 identified accused Ashdul @ Mohd. Azad (correctly identified), who removed the aforesaid amount of Rs. 2 lacs from his pocket as well as from the dashboard of his car. The other associate of accused Ashdul @ Mohd. Azad namely Raju who called PW1 on his mobile phone for purchase of plastic dana was was arrested by the police, however, PW1 deposed that he can identify him if shown to him. Police did FIR No. 380/11; State Vs. Ashdul @ Mohd. Azad & Anr. Page 8 of 25 not recover even a single penny in the present case which was robbed from PW1 by the aforesaid accused persons. PW1 handed over photocopy of Promissory Note Mark PW1/A to the police regarding borrowing of Rs. 2 lacs from Sh. Ram Bahadur Singh. PW1 produced the original promissory note from Ram Bahadur Singh which was exhibited as Ex. PW1/B.
9. During crossexamination, PW1 deposed that he was running his factory since 2003 and it is owned by him. PW1 gave the call at 100 number about involvement of two persons in the incident. IO had prepared the site plan in his presence. PW1 categorically stated that on that day, he had gone to purchase the plastic powder (dana) of one tonne and he had to make repayment of some balance amount also on that day. PW1 denied the suggestion that he had created a false Promissory note at the instance of IO to show the money with him. PW1 further stated during crossexamination that he saw accused Ashdul first time on the day of occurrence and thereafter again on 21122012 on the second floor of Rohini Court Complex. PW1 denied that on 10122011, he hit the bicycle of accused Ashdul at Madhuban Chowk, Rohini and on that account only, he had seen the accused Ashdul. PW1 also denied that he had altercation with accused FIR No. 380/11; State Vs. Ashdul @ Mohd. Azad & Anr. Page 9 of 25 Ashdul and he had told him that he will make complaint against him. PW1 further denied that after getting frightened, he may be booked in a criminal case for heated arguments and accident with accused Ashdul, he falsely implicated him in a false case in connivance with the IO.
10. PW1 is the victim in this case, therefore, I would place a reliance upon the judgement reported in the case of State of Uttar Pradesh Vs. Kishan Pal, 2008 (8) JT 650: 2008 (11) SCALE 233, it was held that it is the quality of the evidence and not the quantity of evidence which is required to be judged by the court to place credence on the statement. In Raja Vs. State (1997) 2 Crimes 175 (Del.), it was held that it is wellknown principle of law that reliance can be based on the solitary statement of a witness if the court comes to a conclusion that the said statement is the true and correct version of the case of the Prosecution. In the case of Kartik Malhar Vs. State of Bihar 1996 (1) RCR (Crl.) 308, the Hon'ble Supreme Court held that conviction can be based on the testimony of a single witness provided his credibility is not shaken and court finds him a truthful witness. It has been further held that Section 134 categorically lays down that no particular number of witnesses are required to prove a fact. The evidence has to be weighed and not FIR No. 380/11; State Vs. Ashdul @ Mohd. Azad & Anr. Page 10 of 25 counted. In the present case, the testimony of PW1 has not only inspired the confidence but also trustworthy.
11. PW10 Sh. Ajay Singh Sekhawat, MM, Dwarka Courts proved the TIP proceedings of accused Ashdul @ Mohd. Azad vide Ex. PW10/A; application of IO for conducting TIP of accused vide Ex. PW10/B and application for supply of TIP proceedings vide Ex. PW10/C. Even, accused Ashdul refused to participate in the TIP proceedings.
12. PW5 Pawan Singh, Nodal Officer, IDEA Cellular Ltd. proved the written request Ex. PW5/A for providing the call details CDR of mobile phone connection bearing no. 8750193678 and 8750193679 and they had provided the call details of the phone no. 8750193678 pertaining to the period 01.10.2011 to 12.10.2011 (running into 2 pages) vide Ex. PW5/B and call details of the phone no. 8750193679 pertaining to the period 01.10.2011 to 12.10.2011 (running into 3 pages) vide Ex. PW5/C. PW5 further proved the cell ID Chart Ex. PW5/D of their company running into 48 pages, the requisite certificate u/s 65B Evidence Act vide Ex.PW5/E, customer application form Ex. PW5/F1 in respect of connection number no. 8750193679 and ID proof as Ex.PW5/F2 duly signed by applicant Ms. Golenoor w/o Karam Ali, R/o B656, New Seemapuri, Delhi and FIR No. 380/11; State Vs. Ashdul @ Mohd. Azad & Anr. Page 11 of 25 their retailer/dealer given at the time of getting the connection. PW5 also produced application form Ex. PW5/G1 qua phone connection number bearing no. 8750193678 and ID proof vide Ex.PW5/G2 which was also issued in the name of Golenoor w/o Karam Ali.
13. PW6 Israr Babu, Alternate Nodal Officer, Vodafone Mobile Phone Services Ltd. proved the written request of SHO P.S. Subhash Place as Ex.PW6/A for providing the call detail CDR of mobile phone connection number bearing no. 8447780415 for the period from 01.10.2011 to 12.10.2011 vide Ex. PW6/B. The cell ID Chart of their company running into 80 pages was also provided to the IO proved as Ex.PW6/C, the requisite certificate u/s 65B Evidence Act vide Ex. PW6/D, the covering letter Ex. PW6/E. PW6 also produced the scanned and certified copy of customer application form of the aforesaid mobile connection along with photocopy of the Voter Icard duly signed by applicant and their retailer/dealer given at the time of getting the connection as ID proof which was issued to customer namely Muzibur Rehman S/o Nazrul Rehman r/o C19/B104, Sanjay Amar Colony, Bengali Basti, Delhi and the scanned copy of the application form proved as Ex. PW6/F1 qua aforesaid phone connection number and ID proof were proved as Ex.PW6/F2. PW5 and PW6 stated that the call details FIR No. 380/11; State Vs. Ashdul @ Mohd. Azad & Anr. Page 12 of 25 have been retrieved from the hard disk from the main server of the company which is beyond possibility of tampering and correct.
14. PW7 Vishal Gaurav, Nodal officer, Bharti Airtel Ltd stated that on the request of the IO call details Ex. PW7/A of the mobile phone connection no. 9818992196 pertaining to the period from 01/10/2011 to 12/10/2011 were provided along with Cell ID chart Ex. PW7/B as well as requisite certificate u/s 65 B Indian Evidence Act Ex. PW7/C. PW7 also produced the customer application form Ex. PW7/D filled up by the subscriber at the time of applying for connection to their retailer. As per record, the above mobile no. 9818992196 was issued to Mahender S/o Sh. Sikander R/o F35A, Gali no. 5, F block, Khajuri Khas, Delhi94. The applicant/subscriber had also given the signed photocopy of Voter Election ICard in his favour Ex. PW7/E. Thus, PW5 to PW7 have proved on record the call details as discussed above.
15. PW8 ASI Madan Mohan also stated in his examination in chief that on 11.10.2011, on receipt of DD No. 35A at about 2.40 pm regarding robbing and fleeing away with Rs. 2 lacs from near dustbin, A Block, Shakurpur, he along with Ct. Raj Pal had gone to the spot i.e. Road No. 43, Rani Bagh Road, near A Block, Public Utility Centre (near dustbin). Complainant Mahender Singh met him FIR No. 380/11; State Vs. Ashdul @ Mohd. Azad & Anr. Page 13 of 25 there and gave his statement Ex.PW1/A. PW8 prepared the rukka Ex. PW8/A and got the FIR registered through Ct. Raj Pal. HC Jagdish Singh examined himself as PW2 and proved the FIR as Ex. PW2/A. PW8 further stated that subsequently, SI Ajit Singh came at the spot with Ct. Raj Pal and carried out the further investigation. PW8 proved the copy of DD No. 35A as Ex. PW8/B. During crossexamination, PW8 deposed that he reached on the spot at about 2:45 pm. The complainant was alone at the spot when PW8 reached there on personal motorcycle.
16. PW9 SI Ajit Singh stated in his examination in chief that on 11.10.2011, investigation of this case was marked to him and he along with Ct. Raj Pal reached the spot i.e. near ABlock, Rani Bagh Road, Shakurpur, near dustbin. IO ASI Madan Mohan and complainant Mahender Singh met him there. Copy of FIR Ex. PW2/A and the original tehrir Ex. PW1/A were handed over to him by Ct. Raj Pal in the police station. With the assistance of complainant, PW9 prepared the site plan without scale vide Ex. PW1/DA showing relevant portions at encircled portionA. PW9 recorded the supplementary statement of the complainant. Thereafter, PW9 made request to the mobile subscriber to provide the detail/CDR of mobile no. 8447780415. On 10.12.2011, PW9 FIR No. 380/11; State Vs. Ashdul @ Mohd. Azad & Anr. Page 14 of 25 received secret information that the wanted accused involved in this case was available at 4½ Pusta, Khajuri Khas. Thereafter, PW9 along with Ct. Baldev left for the above stated place. After reaching there and also in the way to 4½ Pusta Khajuri Khas, PW9 had made request to 45 passerby to join the investigation after sharing the information received by him but none agreed and left without disclosing their names and addresses. Due to paucity of time and nonavailability of name and address of those persons, written notice could not be given to them. Without wasting further time, PW9, Ct. Baldev and secret informer reached after forming a raiding party. The secret informer pointed out towards the accused near 4½ Pusta and thereafter he went away. Accused was apprehended by PW9 with the help of Ct. Baldev and his name came to be known as Ashdul @ Mohd. Azad. He was interrogated and thereafter he was arrested in this case and his personal search was also conducted vide Ex.PW3/A & PW3/B respectively. One mobile phone was recovered during his personal search. Accused made a disclosure statement vide Ex.PW3/C. Accused pointed out the aforesaid place of occurrence by going ahead to the police party voluntarily vide pointing out memo Ex.PW1/D. Accused had disclosed about the involvement of coaccused Karam Ali and Raju. FIR No. 380/11; State Vs. Ashdul @ Mohd. Azad & Anr. Page 15 of 25 PW9 tried to arrest coaccused Karam Ali and Raju but of no avail. Finally, accused Karam Ali was got declared P.O. by the Court. The complete particulars of accused Raju were not available so he could not be get declared P.O. Whatever accused Ashdul @ Mohd. Azad stated voluntarily in his disclosure statement, PW9 recorded the same. PW9 obtained the CDR and other particulars already Ex.PW5/B to 5/E of the mobile phone used by accused Ashdul @ Mohd. Azad bearing no. 8750193678 and of coaccused Karam Ali bearing no. 8750193679. The call detail was minutely scrutinized and the presence of the accused Ashdul was shown on the spot. After scrutiny of call detail of complainant Mahender, his presence was also found at the spot.
17. PW9 further stated that accused Ashdul had disclosed in his disclosure statement that coaccused Karam Ali and Raju had made call at the phone number of complainant mobile from the mobile of coaccused Raju bearing no. 8447780415 and asked him to come near the spot giving temptation to sell plastic powder at very cheap rate. Thereafter, the complainant was robbed by co accused Raju and accused Ashdul and they handed over the robbed money of Rs. 2 lacs to coaccused Karam Ali at Subhash Place Metro Station. Thereafter, accused Ashdul and Raju caught FIR No. 380/11; State Vs. Ashdul @ Mohd. Azad & Anr. Page 16 of 25 Metro for Kashmere Gate and accused Karam Ali took auto for Loni. Accused Ashdul and Raju reached Loni and they distributed the robbed money at the house of coaccused Karam Ali. The disclosure statement of accused Ashdul was found corroborated from the study of the call detail taken of the abovesaid mobile phone numbers. PW9 collected the mobile detail of above mentioned mobile numbers. Accused Ashdul was produced in the court in muffled face and request was made for conducting his TIP. PW9 reached Tihar Jail with complainant but accused had refused to participate in TIP. PW9 proved certificate u/s 65B of Evidence Act as Ex. PW9/A. PW9 also stated that complainant Mahender Singh had identified the accused Ashdul in Rohini Court Complex on 17.01.2012 and gave his statement which he recorded.
18. During crossexamination, PW9 stated that he left the P.S. at about 4.15 pm on that day and reached on the spot within 1012 minutes by his private motorcycle. PW9 recorded the supplementary statement of complainant Mahender at the spot, however, he could not recall how much time he had taken to record the statement. PW9 also stated in his crossexamination that he had recorded the statement of ASI Madan Mohan first of all on the spot. PW9 further stated that Ct. Raj Pal had left the spot with him FIR No. 380/11; State Vs. Ashdul @ Mohd. Azad & Anr. Page 17 of 25 at about 7.30 - 7.45 pm. PW9 denied that promissory note was subsequently got prepared at his instance to falsely implicate the accused. PW9 stated that he had made DD entry of his departure as well as arrival but he could not recall its number. PW9 further stated in his crossexamination that he had prepared the arrest memo on the spot while standing there and it took around 45 minutes to prepare by him those documents at the place of arrest of the accused. PW9 denied the suggestion that Samsung Mobile was not recovered from the personal search of the accused. PW9 further denied that accused Ashdul has no connection with mobile phone no. 8750193678. PW9 also denied the suggestion that complainant had not come or met him in the Rohini Court Complex on 17.01.2012 or he had recorded his statement of his own. PW9 further denied the suggestion that accused Ashdul was falsely implicated in this case by him in connivance with the complainant. PW9 also denied that one culprit was apprehended at the spot and he was let off after taking consideration. PW9 further denied the suggestion that complainant had hit the bicycle of the accused Ashdul on 10.12.2011 at Madhuban Chowk, Rohini and altercation took place and thereafter accused Ashdul was falsely implicated in this case when he told the complainant that he will lodge complaint FIR No. 380/11; State Vs. Ashdul @ Mohd. Azad & Anr. Page 18 of 25 against him. PW9 also denied the suggestion that due to fear of getting involved in criminal case, complainant falsely implicated the accused with his connivance.
19. PW3 Ct. Baldev Raj also stated almost on the same lines as stated by PW9. During crossexamination PW3 stated that IO had made DD entry prior to leaving the PS for Khajuri Khas. PW3 denied that accused did not make any disclosure statement or that it was recorded by the IO of his own to make out a false case against the accused. PW3 further denied that all the documents were prepared subsequently in the PS or PW3 signed the same in the PS. PW4 Ct. Raj Pal stated that on 11.10.2011, he was on emergency duty with ASI Madan Mohan from 8 am to 8 pm. On receipt of DD No. 35A to ASI Madan Mohan, they reached at A Block, near toilet, Rani Bagh Road, Shakurpur Road, where complainant Mahender Singh met them. The complainant gave his statement to ASI Madan Mohan vide Ex. PW1/A and IO prepared the rukka and PW4 got the FIR registered. After registration of case, PW4 came back to the spot along with SI Ajit Singh to whom he handed over the copy of FIR and original rukka at the police station. Thereafter, PW4 and ASI Madan Mohan came back to the police station. During crossexamination by Ld. APP for State, PW4 FIR No. 380/11; State Vs. Ashdul @ Mohd. Azad & Anr. Page 19 of 25 stated that his statement was recorded by SI Ajit Singh and at that time ASI Madan Mohan was also present. PW4 further stated that SI Ajit Singh also recorded the statement of ASI Madan Mohan in his presence after he came back to the spot along with SI Ajit Singh. PW4 stated that SI Ajit Singh prepared the site plan at the pointing out of the complainant and thereafter statement of PW4 was recorded and they came back to the police station while the complainant was already relieved by the IO. During cross examination by the Ld. Amicus Curiae, PW4 Ct. Raj Pal stated that accused was sent to the PS along with PW4 from the spot. PW4 took the accused from the spot to the hospital for his medical examination and then went to the PS. PW4 denied that accused Ashdul has been falsely implicated in this case by the IO or that the accused who robbed the complainant was let off by the IO on taking some consideration. During reexamination by the Ld. APP for the State, PW4 stated that Ex. PW3/A is having date of execution 10.12.2011. PW4 also stated that he did not participate in the investigation of this case on 10.12.2011 and no accused was arrested in the present case in his presence on 10.12.2011. PW4 further stated that on 10.12.2011, he did not take the accused Ashdul @ Mohd. Azad to P.S. from the spot nor he took him to the FIR No. 380/11; State Vs. Ashdul @ Mohd. Azad & Anr. Page 20 of 25 hospital for his medical examination. During crossexamination by Ld. Amicus Curiae PW4 denied that the facts deposed by him during cross examination made on behalf of accused were correct or that the facts deposed by him during cross examination made by Ld. Addl PP were incorrect. PW4 volunteered to say that accused Ashdul @ Mohd. Azad was not present on 11.10.2011 and accused Ashdul was never arrested in his presence. The Ld. Amicus Curiae argued that PW4 being the hostile witness did not support the case of the Prosecution. In this context, I would place a reliance upon the judgement reported in the case of Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J 2653 (1), it was held that evidence of hostile witnesses cannot be treated as effaced or washed off the record altogether. Part of his evidence which is otherwise acceptable can be acted upon. In Paramjit Singh @ Pamma Vs. State of Uttarakhand, AIR 2011 SC 200, it was held that evidence of hostile witness need not be rejected en bloc but should be considered with caution and court should look for corroboration.
20. The Ld. Amicus Curiae also argued that the police has not fairly investigated and the investigation is defective. Whereas, Ld. APP for State argued that if there is a defective investigation, the accused persons cannot get the benefit of it. It is pertinent to FIR No. 380/11; State Vs. Ashdul @ Mohd. Azad & Anr. Page 21 of 25 mention here that even if the investigation is defective or faulty, the accused persons cannot be acquitted solely on account of defective or faulty investigation. In State of UP Vs. Hari Mohan and others., AIR 2001 SC 142, it was held that if the investigation is defective in nature, it cannot be made a basis for acquitting accused. In Dhanaj Singh alias Shera and others. Vs. State of Punjab, AIR 2004 SC 1920, the appellants had been convicted for offence punishable u/s 302 r/w section 34 IPC. It was held that accused cannot be acquitted solely on account of defective investigation. To do so, would tantamount to playing into the hands of investigating officer if investigation is designedly defective.
21. The Ld. Amicus Curiae further argued that there are contradictions in the testimonies of PWs, therefore, their testimonies cannot be believed. Whereas, the Ld. APP for the State argued that the contradictions in the testimonies of PWs are minor which do not go to the root of the case. I have also found that there are some contradictions in the testimony of the aforesaid PWs yet these contradictions are minor contradictions and do not go to the root or core of this case. In this context, a reliance is placed upon the judgement reported in the case of State of UP Vs. Krishna Master & ors. 2010 Cri. L. J. 3889, it was held by the Hon'ble Supreme FIR No. 380/11; State Vs. Ashdul @ Mohd. Azad & Anr. Page 22 of 25 Court that minor discrepancies, not touching core of case, cannot be ground for rejection of evidence in entirety. Ld. Amicus Curiae argued that no public person was joined in the investigation, therefore, in the absence of public witnesses during investigation, the investigation conducted by the police cannot be believed as trustworthy. Whereas, the Ld. APP for the State argued that generally public persons do not come forward to join investigation in such criminal cases. I am of the view that as far as public witnesses joining the investigation are concerned, the public persons are reluctant to become witnesses of criminal trial. Therefore, law is not that testimony of police officers apart from the eyewitness is absolutely untrustworthy or that it can never be acted upon. It has been held in a catena of judgements of the Hon'ble Supreme Court and Hon'ble High Court of Delhi that merely because public witnesses are not joined in a case, the Prosecution case cannot be thrown out. In such circumstances, no benefit can be given to the accused for nonjoining of independent public witnesses. In this context, a reliance can be had upon the judgements reported as State of UP Vs. Anil Singh AIR 1988 SC 1998; Ambika Prasad & Anr. Vs. State 2002 (2) Crimes 63 (SC); Dr. Krishna Pal & Anr. Vs. State of UP 1996 (7) SCC 194.
FIR No. 380/11; State Vs. Ashdul @ Mohd. Azad & Anr. Page 23 of 25
22. The accused stated in his statement u/s 313 Cr.P.C. that on 10122011, complainant Mahender Singh hit on his bicycle at Madhuban Chowk, Rohini and on that account, some heated altercation took place between them. The accused told him that he will make complaint to the police against him for hitting him and his bicycle. On that account, the complainant got frightened and called the IO at the spot and falsely implicated him in connivance with the IO. The accused was illegally detained in the PS by the IO. The accused did nothing as alleged in the present case. In this regard, the accused neither lodged any complaint nor produced any witness or even not filed any document to this effect. During cross examination of PW9, there was a suggestion that one culprit was apprehended at the spot and he was let off after taking consideration. In this context, I would say that there is no complaint that the culprit who robbed the complainant was let off by the IO on taking some consideration. Even otherwise, the aforesaid suggestion reveals that the complainant was robbed. The aforesaid judgements relied upon by the Ld. Amicus Curiae are distinguishable from the facts and circumstances of the present case.
FIR No. 380/11; State Vs. Ashdul @ Mohd. Azad & Anr. Page 24 of 25
23. In view of the my aforesaid discussion, I am of the considered opinion that Prosecution has been able to prove its case against the accused beyond reasonable doubt. I, therefore, hold the accused Ashdul @ Mohd. Azad guilty and convict him u/s 392/34 IPC. Copy of the judgement be given to the convict free of cost.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT on 23032013 FIR No. 380/11; State Vs. Ashdul @ Mohd. Azad & Anr. Page 25 of 25