Delhi District Court
State vs . Ata-Ur-Rehman & Ors. on 18 September, 2014
IN THE COURT OF Ms. CHETNA SINGH:MM-02(SOUTH DISTRICT)
SAKET COURTS COMPLEX, NEW DELHI
STATE Vs. Ata-ur-Rehman & Ors.
FIR No.787/04
U/s : 103 D.P. Act & 394/34 IPC
P.S. : Malviya Nagar
Date of institution of case : 24.06.2005
Date on which case reserved for judgment : 18.09.2014
Date of judgment : 18.09.2014
JUDGMENT
1.FIR No. of the case : 787/04
2.Date of the Commission : 05.09.2004
of the offence
3.Name of the accused : 1. Attar-ur-Rehman S/o Gulam
: Mohammad R/o H. No. D-128, Abul
: Fazal Enclave, Part I, Jamia Nagar,
: Okhla, New Delhi.
: 2. Mohammad Arif S/o Mohammad
: Mushtaq R/o Azeem Dairy, Batla
: House, Jamia Nagar, Okhla, New
: Delhi.
: 3. Kamal Akhtar S/o Mohsin Akhtar
: R/o H. No. M-976, Abul Fazal Enclave,
: Part I, Jamia Nagar, Okhla, New Delhi.
FIR No. 787/04 State Vs AttarurRehman & Ors. Pages 1/20
: 4. Taufiq @ Abbu Beda S/o Abdul
: Rasheed R/o H. No. L-19A, Abul
: Fazal Enclave, Part I, Jamia Nagar,
: Okhla, New Delhi.
4.Name of the complainant : Sh. Kuldeep Singh S/o Sh. Mukhtiar
: Singh R/o H. No. F-213/C, Lado Sarai,
: Old M.B. Road, New Delhi.
5.Offence complained of : u/s 103 D.P. Act & 394/34 IPC
6.Plea of accused : Pleaded not guilty
7.Final order : Acquitted
BRIEF FACTS
1. The story of the prosecution is that on 05.09.04 at about 6.00am at H. No. F-123/C, Lado Sarai, New Delhi, within the jurisdiction of PS Malviya Nagar, accused persons namely Kamal Akhtar, Mohammad Arif and Taufiq in furtherance of their common intention had committed theft of Rs.4,50,000/- and mobile phone make Motora Model U66 of the complainant Kuldeep Singh Sejwal and jewellery articles of the wife of the complainant such as one gold chain, two gold bangles (Kara), one neckless set and one gold ring on which the words 'Pankaj' were mentioned and in committing the theft all accused had kept the complainant in the fear of instant death or instant hurt and thereby all three accused persons committed an offence punishable u/s 392/34 IPC. Further, the story of the prosecution is that on 24.01.05 at H. No. D-128, Abul Fazal Enclave, Part I, Jamia Nagar, Okhla, FIR No. 787/04 State Vs AttarurRehman & Ors. Pages 2/20 New Delhi, within the jurisdiction of PS OIA, accused Attar-ur-Rehman was found in possession of four payjeb and one pair Bichuas of silver to which there was reason to believe the said property to be stolen property and accused Attar-ur-Rehman failed to account for such possession and thereby he committed an offence punishable u/s 103 D.P. Act.
2. On the basis of the said allegations and on the basis of the complaint of the complainant, an FIR bearing number 787/04 under section 394/34 IPC & 103 D.P. Act was lodged at Police Station Malviya Nagar.
3. After investigation, charge-sheet under section 173 Cr.P.C was filed on 24.06.2005.
4. On the basis of the charge-sheet, a charge for the offence punishable under section 394/34 IPC was framed against all three accused persons namely Kamal Akhtar, Mohammad Arif and Taufiq and u/s 103 D.P. Act was framed qua accused Attar-ur-Rehman and read out to the said accused persons, to which they pleaded not guilty and claimed trial on 12.05.2005 and 11.05.2005 respectively.
APPRECIATION OF EVIDENCE
5. To prove its case, prosecution has examined the following witnesses:
6. PW-1 HC Vipin Kumar who is a formal witness was examined on 24.09.2007 and proved the copy of FIR Ex. PW-1/A and endorsement on the basis of rukka Ex. PW-1/B.
7. This witness was not cross examined by the accused persons despite opportunity given.
FIR No. 787/04 State Vs AttarurRehman & Ors. Pages 3/20
8. PW-2 Sh. Kuldeep Singh Sejwal being complainant was examined on 24.09.2007 and deposed that he was a property dealer by profession. He further deposed that on 05.09.2004 three persons were standing in his room besides his wife, two persons were having pistols in their hands and the third one having a long knife and the accused who had pointed out pistol towards his wife, took his wife to the room of his parents and the accused having the knife started searching almirah of his room and one leather bag containing Rs. 4.5 lakh in the denomination of Rs. 500/- each was kept by his almirah and under the lower cupboard the jewellery of his wife was kept which comprises the gold chain, tow gold chain, two gold kada with impression of lion mouth (bangle), one necklace containing impression of 3 safaris, one gold ring on which Pankaj was engraved, and silver pajeb and chutki and one motrola mobile V-66 were stolen by the accused persons and the sim of mobile was also taken by the accuse persons. He further deposed that he made a complaint to this effect to the police and police came at the spot and recorded his statement which is Ex. PW2/A bearing his signature at point A. He further identified the accused Kamal Akhtar, Ata Ur Rehman @ Guddoo, Tofeeq and Arif present in the court. He further deposed that on 16.11.04 he visited the police post to identify the three accused persons arrested by the police in the present case and he immediately identified all the three accused persons in the police post and he was told the names of the said accused persons as Tofiq, Kamal and Arif. He further deposed that on 31.01.05 he was called up to the Hon'ble Court by the IO to identify the recovered case property and he had duly identified 4 pajebs and one pair toe rings and IO recorded his statement to this effect. He further identified the case property in the court i.e. 4 pajebs and one pair of toe rings silver which are Ex. P-1 to P-5.
FIR No. 787/04 State Vs AttarurRehman & Ors. Pages 4/20
9. This witness was cross examined by Ld. Defene counsel wherein he stated that he had read his complaint/statement to the police before signing the same and he admitted that police had recorded all incidents narrated by him and the description of all stolen property was also narrated and recorded. He further deposed that he had not given any supplementary list of the stolen articles to the police and he admitted in his complaint Ex. PW2/A that there was no mention of any silver pajeb and chutki. He voluntarily stated that he had told to SI Manish joshi about the pajeb but he had not recorded the same in Ex. PW-2/A, however his statement was recorded at PP Saket on 05.09.04 but he does not remember the time. He denied the suggestion that the police manipulated statement with his connivance that is why he was unable to explain the time. He had told the police about the denomination of the looted currency amount. He further admitted that he had signed Ex. PW2/A after reading the same and in Ex. PW2/A the denomination of currency note was not mentioned. He further deposed that after recording of Ex. PW2/A his statement was not taken again by the police. He denied the suggestion that he was making false statement. He further deposed that he had not made any complaint against SI Manoj Joshi for not mentioning the silver pajeb and chutki in his complaint. He voluntarily stated that he had told ACP Varsha Sharma, SHO VP Singh and Rajender Yadav Special Staff about this fact. He further deposed that he had informed ACP Varsha Sharma, SHO VP Singh and Rajender Yadav speical staff on 05.09.04 and on the subsequent occasions when he was called however, he could not tell the time and date. He denied that suggestion that he never mentioned to any senior officer about the silver pajeb and chutki or that the pajeb and chutki had been subsequently planted upon the accused persons by the police by his connivance. He further FIR No. 787/04 State Vs AttarurRehman & Ors. Pages 5/20 deposed that he had told the police about the appearance of the accused who was having pistol. He further deposed that he had told the appearance of all offender including the accused Kamal Akhtar to the police. He voluntarily stated that the leader of the accused persons namely Jahid who was also having police a pistol and he was absconding and no sketch of accused Kamal Akhtar was prepared, only sketch of accused Jahid was prepared and the other offender had covered their face below the nose. He admitted that description of the accused and the fact that the offenders had covered their face below the nose was not mentioned in Ex. PW2/A and he can not give any reason as to why these facts were not mentioned in EX. PW2/A. He voluntarily stated that he had told the fact to the police and he had been examined in the court. He admitted that he had not given the description of the accused in his examination in chief and he had not told that the accused had covered their face below nose. He further deposed that he can not tell any distinguishing identification mark on my pajeb and he had not given any receipt or other documentary proof regarding ownership of the pajeb to the police. He voluntarily stated that it had been purchased from M/s Vijay Jewellers who was their family jeweller and he had told the police about this fact and the jeweller had not come with his to identify the pajeb and chutki. He denied the suggestion that the jewellery articles produced in this case and identified by them were not stolen property or that he could not give the description of the accused to the police as the face of the offender was covered below the nose and he could not see their face. He voluntarily stated that the leader of the accused Jahid had not covered his face. He further deposed that the accused persons were apprehended in the area of Lodhi Colony on the day of Dashera and he had gone to the office of Special Staff at Lodhi Colony and he had identified the accused. He denied the FIR No. 787/04 State Vs AttarurRehman & Ors. Pages 6/20 suggestion that he had not identified the accused and the police told him that he had to identify the accused persons which were shown to him in their office. He denied the suggestion that police told him that accused persons were the same offender who had committed the offence. He denied that suggestion that none of the accused present in the court had committed the offence. He further deposed that after signing Ex. PW-2/A he had put his signature on the document and he visited the court with SI Manoj Joshi to identify the case property. He further deposed that he does not remember whether he had signed any other document during investigation or that he had deposed falsely against the accused persons at the instance of IO.
10. PW-3 Mukhtayar Singh Sejwal being the public witness was examined on 12.12.07 he deposed that on 05.09.04 he and his wife Smt. Khazani were in their rooms and at about 6.00am his wife made a noise and he immediately went to her room where he found that his wife was calling his son loudly and the accused Kamal Akhtar was having the pistol in his hand and had put the pistol on the right shoulder of his wife and other accused Taufiq was having a knife in his hand and was standing towards the backside of his wife. He further deposed that he pushed accused Taufiq and the other accused Kamal Akhtar pointed out the pistol towards him also and four more accused persons were present in his house, out of whom two accused were having pistols and the other two were having long knife and were walking in the rest of the house and went to his son's room. He further deposed that the accused persons confined him and the wife of his son into the room of his wife where accused Kamal was present with the pistol and accused Zahid not arrested put the revolver on his son and took rounds of the home and was asking as to whether where the wealth and jewellery was kept and the accused persons removed Rs. 4.5 lacs compromising currency FIR No. 787/04 State Vs AttarurRehman & Ors. Pages 7/20 note of Rs. 500/-, the jewellery including neckless bearing the impression of three lions, golden bangles (kada), gold chain and other silver jewellery and put the same into black bag. He further deposed that one of the accused also took the cell phone of his son and removed the sim card of the same and kept the sim card near the window of the room and locked the glass door from the outside and asked him to break open the glass door after they had left. He further deposed that the accused persons ran away from the back door of the house and IO recorded his statement to this effect.
11. This witness was cross examined by Ld. Defence counsel for the accused persons wherein he stated that there was no physical injury on his person or on the person of Kuldeep, his wife and wife of Kuldeep. He denied the suggestion that no incident took place or that they could not have seen the assailants as they were sleeping and it was night. He further deposed that he was present when the statement of Kuldeep was recorded at about 8.30/9am. He further deposed that on the day of incident there were two tenants namely M/s Fukra Exports and Shivani company on the ground floor and he does not remember the name of occupants. He further deposed that he had raised alarm after the incident but he does not remember whether this fact was recorded by the police in his statement or not. He denied the suggestion that he had not raised any alarm and he did not state in his examination in chief before the court that he had done so. He further deposed that a guard resides there volunteered he resides in the guard room and their voice could not reach there and further deposed that the guard was not examined by the police in his presence and no conversation took place between him and Kuldeep between the period of 6am to 9am. He admitted that the stolen mobile phone could not be recovered. He further deposed that his hands and legs were not tied by the FIR No. 787/04 State Vs AttarurRehman & Ors. Pages 8/20 accused persons and no cloth was inserted in his mouth and the thieves kept him in his wife's room. He further deposed that he and his wife were sleeping in separate rooms and the rooms were shown to the police and police did not prepare site plan in his presence and Kuldeep also did not point out the rooms to the police in his presence. He further deposed that he and his wife were confined to one room and doors were bolted from outside and he had broken the glass of the door and then he opened the door after unbolting the room by throwing his hand in the broken glass and the broken pieces of the door glass were lying in the floor when police came and police did not see the broken which was covered with glass and he had told the police regarding the bolting of the door and the pieces of the glass lying on the door confronted with the 161 statement where it was not so recorded. He further deposed that the police had taken the broken pieces of glass in their possession and obtained his signatures on the memos. He denied the suggestion that he had signed any memo which was prepared by the police or that he was deposing falsely and nothing happened so he stated or no door glass was broken and no glass pieces were taken by the police. He admitted that he had seen the accused persons with their description and identified them and stated the police the description of the accused persons including the fact that the accused persons were wearing gloves and their faces were open. Confronted with 161 Cr.P.C statement where it was not so recorded. That statement was stated by him first time in the court and he did not state the same in his examination in chief. He denied the suggestion that he was deposing falsely owing to the intention to frame the accused in the present case on the instance of special staff as they narrated that they were the culprits. He denied the suggestion that he did not state to the police the denomination of the police stolen by the culprits. Some of the notes of were FIR No. 787/04 State Vs AttarurRehman & Ors. Pages 9/20 Rs. 500/- and some were of Rs. 100/- in denomination. He admitted that his statement given in examination in chief was correct and this statement is also correct regarding the denomination of the note which was case property and was stolen. He denied the suggestion that he was deposing falsely as he was not aware of the amount and denomination of the stolen currency because of that this contradiction was stated by him. He further deposed that police made the documents in his presence but he did not sign the same. He denied the suggestion that he was not present at the spot on the day of incident or that he did not see any of the accused on the day of incident. He voluntarily stated that he had identified all accused and they refused to participate in Judicial TIP. He denied the suggestion that he was called with his son Kuldeep to the office of the Special staff after the accused were arrested or that the accused were shown to them by Special Staff in their office and they were told that accused had committed the offence.
12. PW-4 ASI Sher Pal was examined on 12.12.2007 and deposed that on 05.09.2004 at the call of the IO, he visited F-123/C, Old M.B. Road, Lado Sarai where from he lifted two chance prints with the help of golden powder from room door glass which was marked as Q1 and the other from the iron staircase towards the backside marked as Q2 and sent the same to finger print burea. His report on record is Ex. PW-3/A bearing his signature at point A.
13. This witness was not cross examined by the accused persons despite opportunity given.
14. PW-4 HC Rakesh Kothiyal was examined on 15.05.2008 and deposed that on 21.10.2004 he was posted as HC in the office of Special Cell, Lodhi Colony and on that day at about 11.30am SI Arvind Kumar FIR No. 787/04 State Vs AttarurRehman & Ors. Pages 10/20 received a secret information on phone that one Aklak who is the BC of PS Hauz Khas will come along with 6-7 associates at Kusro Park, Nizamuddin with intention to make plan to commit some dacoty and the Inspector reduced the said information in Roznamcha and discussed the same with senior officer who instructed him to take action. He further deposed that IO organized a raiding party comprising of Inspector Hirday Bhushan, SI Umesh Bartwal, SI Arvind Kumar, SI Amul Tyagi, ASI Rishi Pal and other staff and at about 11.45am they left the spot in private vehicle and reached at Lodhi Flyover, Mathura Road, where IO met with secret informer who told that about 6-7 persons are sitting in the Khusro park and Inspector Govind Sharma contacted few public persons to become witness to raid but none agreed to and thereafter, as per information at about 12.30pm the raiding party raided the park and apprehended 6 persons. He further deposed that he apprehended the accused Mursalin present in the court and identified all the accused persons present in the court and nothing was recovered from the accused Mursalin however, the country made pistol, knife and ustra were recovered from the other accused persons respectively and IO got case registered and recorded his statement to this effect.
15. This witness was cross examined by Ld. Defence counsel for the accused persons wherein he denied the suggestion that the accused Mursalin or other accused were not arrested as he stated above. He admitted that he did not recover anything from accused Kamal Akhtar, Taufiq, Arif and Ata-ur-Rehman. He denied the suggestion that he being interested witness as a police official was making false statement against the present accused in the court.
16. PW-5 Gulam Mohammad was examined on 29.05.2008 and deposed that in the last week of January 2005 some police personnel came FIR No. 787/04 State Vs AttarurRehman & Ors. Pages 11/20 to his home and told that his son was sitting in Ambedkar Nagar, Police Station and he went there and police asked him to sign the plain paper and he signed the same.
17. On resiling from his earlier statement, this witness was cross examined by Ld. APP for State wherein he stated that he did not make any statement to the police. He denied the suggestion that the statement Ex. PW-5/A was recorded by the police at his behest or that same is true. He denied the suggestion that one James Messey along with the police personnel came to his house on 24.01.2005 and that he pointed out towards his son or that his son was got recovered for pairs of payal of silver made and 2 pairs bichua. He admitted that the seizure memo Ex. PW-5/B bears his signature at point A. He voluntarily stated that he signed the blank papers and he was high school pass and he can read and write Hindi very well and he signed Ex. PW-5/B under the influence of police. He denied the suggestion that in order to screen his son Ata ur Rehman from legal punishment he accompanied him to depose in this Hon'ble Court. He further deposed that he cannot identify the case property as the same was not recovered at the instance of his son in his presence from his house. He denied the suggestion that he was not intentionally identifying the case property i.e. 4 pairs of payal and 2 pairs of bichuwa recovered in his presence in order to save his son.
18. This witness was cross examined by Ld. Defence counsel for the accused wherein he stated that he was god fearing person and did perform prayers and he understood that the false statement is sin and this statement was on oath and it was his faith that if any statement based on truth which has to be stated against his son he had to state. He further deposed that beside his house Dr. Ansari and Dr. Nisar Ahmad resided with FIR No. 787/04 State Vs AttarurRehman & Ors. Pages 12/20 their family and when police reached there, they were also present at his house and police did not obtain their signatures and they had taken his signature on the pretext that police came to his house. He further deposed that it was a blank paper and on that faith he had signed the paper. He denied the suggestion that he was deposing falsely to save his son.
19. PW-6 Ct. Jaivir Singh was examined on 17.09.2008 and deposed that on 24.01.2005 he was posted at PP Saket, PS Malviya Nagar and on that day he along with ICPP SI Manish Joshi, Ct. Arvind Kumar Special staff south district reached at Madangir Chowki where accused Anni Messi @ Jems was found in police custody and SI Manish Joshi interrogated the accused Anni Messi who disclosed that his share of stolen articles were with his friend namely Attar-ur-Rehman and thereafter they took the accused Anni Messi to Abul Fazal Enclave, Jamia Nagar, part I, and accused Anni Messi took them to a residential colony in a house in 2 nd floor from where accused Attar-ur-Rehman was arrested vide Ex. PW-6/B at the instance of accused Anni Messi and accused Attar ur Rehman took out a small plastic bag, kept beneath his bed and same was opened and one small cloth bag containing 4 pairs of silver pajeb of different design and two pairs of Bichchua was taken out. The disclosure statement of accused Attar Ur Rehman was recorded vide memo Ex. PW-6/A and thereafter accused Attaur Rehman was medically examined and produced before the court. He further identified the accused persons present in the court as well as case property which was recovered from the possession of the accused Attar ur Rehman.
20. This witness was cross examined by Ld. Defence counsel for the accused persons wherein he deposed that he does not remember the exact time but accused Ataur Rehman was arrested afternoon and he does FIR No. 787/04 State Vs AttarurRehman & Ors. Pages 13/20 not remember whether they had asked somebody from the building to be a witness of recovery or not and how many floors were in that building. He denied the suggestion that they had not arrested the accused Attar Ur Rehman from Abul Fazal and they had arrested him by calling him at PS or that they had prepared and edit the same thereafter. He further denied the suggestion that accused Anni Messi had not given any disclosure statement against accused Attar Ur Rehman and the document relating to the same was prepared by them. He further denied the suggestion that nothing was recovered from the possession o the accused Attar Ur Rehman and the Pajeb and Bichchuas were planted by them. He further denied the suggestion that because the said pajeb and bichchuas were planted by them thats why there was difference in the numbers of pajeb and bichchuas in his statement and actual number, produced in the court or that he was deposing falsely being a police official and interested witness.
21. PW-7 HC Devi Dayal was examined on 27.09.2008 and deposed that on 21.10.2004 he was posted at Special Cell, Lodhi Colony and on that day at about 11.30am SI Arvind Kumar received a secret information that an scoundrel who is BC of PS Hauz Khas would assemble along with his 6-7 associates at Kusro Park to prepare for a dacoity and SI Arvind Kumar had made entry in Roznamcha regarding this and thereafter he had discussed the matter with senior officer who instructed him to conduct raid. A raiding party was prepared consisting of Inspector Hirday Bhushan, SI Umesh Bartwal, SI Arvind Kumar, SI Amul Tyagi, ASI Rishi Pal, HC Rakesh, HC Raj Kumar, HC Anand Prakash, HC Surender, himself and Ct. Mohan and thereafter, raiding team led by Inspector Govind Sharma proceeded towards Khusro Park on two private car, two private two wheelers at about 11.45am. He further deposed that at about 12pm they reached at FIR No. 787/04 State Vs AttarurRehman & Ors. Pages 14/20 Flyover, Mathura Road, where secret informer met and told that the whole gang are sitting in the park and Inspector Govind Sharma and SI Arvind Kumar requested few public persons to become witness to raid but none agreed to and thereafter, HC Raj Kumar and secret informer was sent to hear the conversation of the gang and after about 10 minutes, they came back and informed the conversation to Inspector Govind Sharma and SI Arvind Kumar and thereafter at about 12.30pm they reached inside the park and apprehended six persons. He further deposed that he had apprehended Taufik @ Abdullah and conducted his personal search and found one buttondar knife from the pant worn by him. SI Arvind Kumar prepared the sketch of knife. The length of knife was found to be 32cm, blade 15cm, handle 17cm and the width of blade was 3.00cm. The shape of the knife was like fish having contents Rampur in English. The handle of the knife was bronze and blade was of iron. The knife was closed with the help of button and the same was sealed in a pulanda and sealed with the seal of AK. After used the seal was handed over to Ct. Mohan and thereafter memos were prepared which bears his signature. Knife was seized vide memo mark X which bears his signature at point A. He further identified the accused Taufik present in the court. Further, the identity of the case property was not disputed hence, the production of the same was dispensed with.
22. This witness was not cross examined by Ld. Defence counsel for the accused persons despite opportunity given.
23. PW-8 HC Devi Dayal was examined on 15.01.2009 and deposed that on 21.10.2004 he was posted at Special Cell, Lodhi Colony and on that day he was present in the office at Lodhi Road and at about 11.30am SI Arvind Kumar received a secret information on telephone that one namely Akhlak who is BC of PS Hauz Khas area would come along with FIR No. 787/04 State Vs AttarurRehman & Ors. Pages 15/20 his 6-7 associates at Kusro Park, Nizamuddin in order to prepare the plan of dacoity and robbery and on this, SI Arvind Kumar had made entry in Roznamcha regarding this and thereafter he had discussed the matter with senior officer who instructed him to conduct raid. A raiding party was prepared consisting of Inspector Hirday Bhushan, SI Umesh Bartwal, SI Arvind Kumar, SI Amul Tyagi, ASI Rishi Pal, HC Rakesh, HC Raj Kumar, HC Anand Prakash, HC Surender, himself and Ct. Devi Dayal and thereafter, raiding team led by Inspector Govind Sharma and at about 11.45am they reached at Flyover, Mathura Road by a private vehicles where secret informer met and SI Arvind Kumar requested few public persons to become witness to raid but none agreed to and thereafter, HC Raj Kumar and secret informer was sent to Khurso Park to verify the information and to hear the discussion between the accused persons and after about 10-15 minutes, they came back and informed the conversation to Inspector Govind Sharma and SI Arvind Kumar and thereafter at about 12.30pm they reached encircled the persons who were planning for the robbery and apprehended one of them whose name was revealed as Arif and conducted his personal search and found one .315 bore loaded country made pistol (katta) in the right side of wearing pant and one live cartage found in the left pocket of his pant. He further deposed that he handed over the case property to SI Arvind who unloaded the katta and taken out one live cartage from it. Site plan of both the cartages and katta was prepared by him and IO prepared the FSL form and conducted the measurement of the Arms and thereafter he prepared rukka after sealed the case property and got registered the FIR no. 142/04 and informed the same to the IO. IO recorded the disclosure statement of accused Arif which is mark A and prepared seizure memo of katta and cartage which is mark B which bears his signature at point A. He FIR No. 787/04 State Vs AttarurRehman & Ors. Pages 16/20 further deposed that leaving the interrogation the Arif disclosed about the commission of the offence pertaining to present case i.e. 787/04 along with his other companions. He further deposed that IO recorded his statement.
24. This witness was not cross examined by Ld. Defence counsel for the accused persons despite opportunity given.
25. PW-9 Ct. Arvind was examined on 16.09.2014 and deposed that on 24.01.2005 he was posted as Ct. at PP Saket, PS Malviya Nagar and on that day he along with Ct. Jai Veer and SI Manish Joshi reached at Madangir where IO had arrested Ani Messy @ James vide arrest memo Ex. PW29/A bearing his signature at point A. He further identified the accused present in the court and thereafter IO accompanied Ani Messy@ James and reached at D-128 Abul Fasal Enclave Jamia Nagar, Okhla, where IO had arrested the Ataur Rehman @ Kukka vide arrest memo already Ex. PW6/A bearing his signature at point B (he identified the accused present in the court). He further deposed that accused Attar Ur Rehman disclosed to SI Manish Joshi that he had kept the robbed items in his house. Subsequently, he handed over sum goods from his suitcase/box kept under the belt and IO opened the cloth/goods and found a pajeb of silver color and one pair bicchua of silver color and had recorded the disclosure statement of accused Attar Ur Rehman which is already Ex. PW6/B bearing his signature at point B and seized the said case property vide seizure memo already Ex. PW5/B bearing his signature at point B.
26. This witness was cross examined by Ld. Defence counsel for accused persons wherein he stated that he reached at Madangir Chowki at 10.30 to 11.00am and SI Manish Joshi had arrested the accused Ani Messy at about 12 to 12.30pm and they left Madangir Chowki at about 12.30pm and reached at Abul Fasal Enclave 128 part-1, Jamia nagar Okhla by private FIR No. 787/04 State Vs AttarurRehman & Ors. Pages 17/20 car (white color maruti 800), which was arranged by chowki incharge. He further deposed that he can not tell the registration no. of said car. He further deposed that SI Manish Joshi was driving the said car from Madangir to Abul Fasal. He further deposed that the building no. 128 part-1 was having three or four storeies and IO had requested few persons residing in the same building to join the investigation but all had refused. He further deposed that he does not remember whether IO had recorded the name or address of those public persons or not. He further stated that IO had not given any notice to join the investigation to those persons. He denied the suggestion that no such incident took place as alleged by him. He admitted that he had told in his evidence that they were aware about the address of those persons as they were residing in the same building and he can not tell as to what was situated at the left side or right side of 128 Part-1. He further deposed that the pajeb and bichua were recovered before the apprehension of Ataur Rehman. He further deposed that he was not aware the place where the Pajeb and Bicuhua were kept. He admitted that the saib Pajeb and Bichua were not identified by anyone before seizing the same and after seizing of case property he had carried the sealed pulinda to PS Malviya Nagar and told the IO in his statement that one Pajeb and one pair bichua were recovered at the instance of Ataur Rehman @ Kukku. He denied the suggestion that he had told in his statement that two pairs of Pajeb were recovered. He further deposed that he had not seen those Pajeb after their seizure and they returned from 128 part-1 at about 2.30 to 2.45 pm and the arrest memo had prepared at 128 Part-1. He further deposed that at the time, when he signed the arrest memo of Ataur Rehman, there was no editing at the column time of place and arrest. He admitted that he had not stated in his statement U/s 161 Cr.P.C. that accused Ataur Rehman handed FIR No. 787/04 State Vs AttarurRehman & Ors. Pages 18/20 over the goods, kept under his belt. He denied the suggestion that accused Ani Messy was present in the court (witness pointed out towards the accused Kamal Akhtar on being asked as regards the identity of accused Ani Messy). He denied the suggestion that there was no place called as 128 Part-1 in Abul Fasal Area. He admitted that he had stated in his statement u/s 161 Cr.P.C. that the place they had visited was D-128 and he had not told any part -1, 128 in his statement to IO. He denied the suggestion that he had not joined the investigation as stated or that he had not gone to D-128, Abul Fasal Enclave on the date in question or that no recovery had been affected in his presence and he had signed all the documents being asked by the IO at the later stage. He further denied the suggestion that accused Ataur Rehamna was not arrested in his presence and he was deposing falsely.
27. PW-10 Inspector Paras Nath Verma was examined on 17.09.2014 and deposed that on 25.05.2005 he was posted as I/CPP at Pushp Vihar and on that day he along with HC Shiv Kumar went to Tihar Jail and formally arrested accused Anish @ Rajan vide arrest memo Ex. PW10/A bearing his signature at point A. He further deposed that he had also recorded disclosure statement vide memo Ex. as PW10/B bearing his signature at point A.
28. This witness was cross examined by Ld. Defence counsel for accused persons wherein he denied the suggestion that he had not recorded any disclosure statement in the present matter.
29. Apart from ten witnesses, no other witness was examined by the prosecution despite repeated opportunities given. Hence, PE was ordered to be closed on 18.09.2014. The statement of all accused persons under section 313 r/w section 281 Cr.P.C was recorded on 18.09.2014 in FIR No. 787/04 State Vs AttarurRehman & Ors. Pages 19/20 which they stated that they have been falsely implicated in the present case and do not want to lead defence evidence.
30. Final arguments were advanced by Ld. Counsel for accused persons and Ld. APP for state. Heard.
Reasons for Decision
31. Prosecution was to examine 20 witnesses in total. Matter pertains to the year 2004. Around 10 witnesses were examined by the prosecution. Apart from ten witnesses examined, remaining remained unexamined despite various opportunities given to the prosecution and despite the matter being fixed for consecutive hearing for evidence to be led by the prosecution. It is clear that various material witnesses including IO and Record clerk have not been examined. In view of the same, the guilt of the accused has not been proved beyond a reasonable doubt. Hence, accused Attar-ur-Rehman is hereby acquitted of the offence charged u/s 103 D.P. Act and remaining accused persons namely Mohammad Arif, Kamal Akhtar and Taufiq are acquitted of the offence charged u/s 392/34 IPC.
Previous bail bond in compliance of section 437-A Cr.P.C. to remain in force for a period of 6 month from today. File be consigned to record room.
Announced in the Court (CHETNA SINGH) on 18.09.2014 MM-02(SD)/18.09.2014
Certified that this judgment contains 20 pages and each page bears my signatures.
(CHETNA SINGH) MM-02(SD)/18.09.2014 FIR No. 787/04 State Vs AttarurRehman & Ors. Pages 20/20