Delhi District Court
State vs Zaid on 16 November, 2022
IN THE COURT OF SHRI RAMESH KUMAR
PRINCIPAL DISTRICT & SESSIONS JUDGE,
NORTH-EAST DISTRICT, KARKARDOOMA
COURT DELHI
SC no.66/22
CNR No.DLNE01-000838-2022
FIR: 521/20
Police Station: Shastri Park
Under Sections: 392/397/34 IPC & 27 Arms Act
STATE Versus Zaid
S/o Islam
R/o E-82, Gali no.14,
Shastri Park, Delhi.
Date of Institution : 24.03.2022
Date of Argument : 16.11.2022
Date of Judgement : 16.11.2022
JUDGMENT
1. The case of the prosecution, in brief, is that, on 04.11.2020, at about 11:45 pm, Imran Malik (hereinafter referred to as the complainant), after closing his shop, was going on his motorcycle to meet his friend Suhail, who resides in SC No.66/22 STATE vs. ZAID FIR No.521/20 Page no. 1/9 the area of Jama Masjid. As soon as, the complainant took left turn towards Shastri Park red light, he received a phone call from Suhail, and, as such, complainant, stopped his motorcycle. In the meantime, three persons came there, and, one of them put a country made pistol on the temple(kanpati) of the complainant, while the other person snatched mobile phone from the possession of the complainant. Further, one of the aforesaid person, took out a pistol, and, opened fire upon complainant, but somehow bullet did not hit complainant. Further, the said person tried to hit the complainant, on his head with the said pistol, but at that time, complainant was wearing helmet, as such, he did not sustain any injury. Thereafter, one of the aforesaid person, overpowered the complainant, while other person, took out the purse of the complainant from right side pocket of his pant, which was containing around Rs.5000/- in cash, RC of motorcycle, driving license, PAN card, Aadhaar card, ATM Card of HSBC bank, debit card of SBI Bank, and, key of shop of the complainant. Thereafter, all the three aforesaid persons, fled from the spot towards Zero Pusta side. The complainant, called his brother at the spot, and, his brother informed the PCR. Later, on the basis of statement of complainant, FIR no.521/20, under section 392/397/34 IPC and 27 Arms Act, was registered, against accused Zaid at PS Shastri Park.
2. On appearance, in compliance of section 207 IPC, copies were supplied to accused, and, as, offence punishable u/sec. 392/397 IPC, is triable by the Court of Sessions, case was committed to Sessions Court.
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3. In the present matter, accused was charged for offences punishable under section 392/397/34 IPC, and, 27 Arms Act, to which accused pleaded not guilty, and, claimed trial. Thereafter, case was fixed for prosecution evidence.
4. The prosecution, in order to prove its case, examined one witness i.e PW-1 Imran Malik.
5. PW-1, Imran Malik, deposed that, on 04.11.2020, after closing his shop, he was going on his motorcycle to meet his friend Suhail. It is, further stated, that, as soon as, he took left turn towards Shastri Park red light, complainant, received a phone call from Suhail, and, as such, complainant stopped his motorcycle. He, further deposed, that, in the meantime, three persons came at the spot, and, one of them put country made pistol on the temple(kanpati) of complainant, while the other person, snatched his mobile phone. He, further deposed, that, one of aforesaid persons took out a pistol, and, opened fire upon him, but, somehow bullet did not hit complainant. He, further deposed, that, said person tried to hit him on his head with the aforesaid pistol, but, at that time, complainant, was wearing helmet, as such, he did not sustain any injury. He further deposed, that, thereafter, one of the aforesaid person, overpowered him, while, other person took out the purse of the complainant from right side pocket of his pant, which was containing around Rs.5000/- in cash, RC of motorcycle, driving license, PAN card, Aadhaar card, ATM Card of HSBC bank, debit card of SBI Bank and the key of shop of the complainant. He further deposed, that, after aforesaid persons took out key of SC No.66/22 STATE vs. ZAID FIR No.521/20 Page no. 3/9 his motorcycle, they fled from the spot towards Zero Pusta side. He further deposed, that, he called his brother at the spot, who informed PCR. He further deposed, that, on the next day, he went to concerned Police Station, where his statement Ex.PW1/A, was recorded. He further deposed, that, none of the accused persons, who were present in the court, were the real culprit.
6. Since, PW1, Imran Malik, did not fully support the case of the prosecution, and, resiled from his previous statement, on material facts, he was cross-examined by ld. Addl. PP for the State.
7. PW-1, Imran Malik, during cross-examination by ld. Addl. Public Prosecutor for the State, denied suggestion, that, accused, who was present in the court, was the same person, who had committed offence with him.
8. Thereafter, prosecution evidence was closed, as material prosecution witness i.e PW-1 Imran Malik, did not support the case of the prosecution. As such, no fruitful purpose would have been served by examining remaining prosecution witnesses, and, in view thereof, prosecution evidence was closed. Since, nothing incriminating has come on record against accused, his statement under section 313 Cr.P.C, was dispensed with.
9. I have heard ld. Addl. Public Prosecutor for the State, and, ld. counsel for the accused, and, have carefully perused the record file, and, have gone through the material placed on record.
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10. It is contended by ld. counsel for accused, that, the prosecution has miserably failed to prove its case beyond reasonable doubts, as material prosecution witness, namely, PW- 1 Imran Malik, in his examination-in-chief, has specifically deposed, that, he could not identify accused, to be the same person, who had robbed him or attempted to assault him with pistol. In these circumstances, it is argued by ld. counsel for accused, that, since, material prosecution witness i.e PW1/complainant, had not identified accused, he is entitled to be acquitted, in the present case.
11. Ld. Addl. Public Prosecutor for the State, on the other hand, has contended, that, from the evidence, which has come on record, it is amply clear, that, the incident, in which complainant, was robbed was infact caused by accused. It is, further argued, by ld. Addl. Public Prosecutor for the State, that, the contradictions, pointed out by ld. counsel for the accused, are minor contradictions and, therefore, same are not fatal to the case of the prosecution.
12. Section 392 and 394 IPC are reproduced as under:
"392. Punishment for robbery.--Whoever com- mits robbery shall be punished with rigorous im- prisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be ex- tended to fourteen years.
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394. Voluntarily causing hurt in committing robbery-
If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such per- son, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
13. In the present case, the analysis of the evidence of PW1, Imran Malik, is critical for arriving at just conclusion of the present case. PW1, Imran Malik, has specifically deposed, in his examination-in-chief, that, he could not identify accused, as the same person, who had robbed him or attempted to assault him with pistol. Perusal of cross-examination of PW1, Inran Malik, shows, that, there are serious contradictions in his testimony, as he had stated, in cross-examination, that, he could not say as to whether the accused, present in the court, was the one, who had robbed him or attempted to cause injury on his person by pistol.
14. Thus, it is clear from the record file, that, prosecution has not been able to prove it's case, beyond reasonable doubt, against accused. In the given facts, and, circumstances, and, considering the contradictions, apparent in the evidence of the PW-1 Imran Malik, there is nothing on record against accused to convict him in the present case.
15. It is well settled proposition of criminal law, that, the SC No.66/22 STATE vs. ZAID FIR No.521/20 Page no. 6/9 prosecution has to prove its case against the accused, beyond reasonable doubt. The law on the subject has been delineated succinctly stated by the Apex Court in case titled as Takdir Samsuddin Sheikh Vs. State of Gujarat and Anr., AIR 2012, Supreme Court 37, wherein, it is held as under:
"It is settled legal preposition that, while appreciating the evidence, the court has to take into consideration, whether the contradictions/omission/improvements/embellishments etc., had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, omissions or improvements on trivial matters, without affecting the case of the prosecution, should not be made the court to reject the evidence, in its entirety. The court, after going through the entire evidence must form an opinion about the credibility of the witnesses."
16. In Harish Chandra V Rex, 1950 ALJ 220, it has been held that:
"In criminal cases, the prosecution has to prove the guilt of the accused beyond reasonable doubt. Mere preponderance of probability could not do. In criminal cases, the burden of proof, even, in the sense of establishing a case is always on the prosecution. The prosecution has to stand on its own legs. It has to prove the guilt of the accused on its own evidence. The weakness of the defence will not help the prosecution."
17. In Wingly V State of Madhya Pradesh, AIR 1954 SC 15, it has been held by the Supreme Court that:
SC No.66/22 STATE vs. ZAID FIR No.521/20 Page no. 7/9 "If the prosecution evidence, as a whole, is unreliable and cannot be accepted, as correct for specific reasons, the silence of the accused can be of no avail to the prosecution, for such conduct of silence can never be permitted to become a substitute for the proof by the prosecution."
18. I have perused the record file, and, after perusal thereof, I am of the considered opinion, that, there is not sufficient incriminating evidence/material, against accused. The evidence of PW1, Imran Malik, does not inspire confidence of this court, due to the contradictions, in his testimony, as to the identity of the accused. There is nothing on record file to show, that, accused, was the aggressor and allegedly robbed the complainant/PW1 Imran Malik or attempted to assault him with a pistol. It is well settled proposition of criminal law that the prosecution has to prove its case against the accused, beyond reasonable doubt, by clear clinching, and, unambiguous evidence.
19. Hence, considering the overall facts, and, circumstances of the case, and, the discussions made herein above, in my opinion, the prosecution has not been able to prove its case, to the effect that, it was accused, who had robbed PW1/complainant, Imran Malik or attempted to assault him with a pistol. Accordingly, accused is acquitted of the offences punishable under section 392/397/34 IPC and 27 Arms Act.
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20. File be consigned to the Record Room, after compliance of the conditions of bail bond under section 437-A Cr.P.C.
ANNOUNCED IN THE OPEN
COURT ON 16th NOVEMBER ,2022 Digitally signed
by RAMESH
RAMESH KUMAR
KUMAR Date:
2022.11.17
14:04:16 +0530
(RAMESH KUMAR)
PRINCIPAL DISTRICT AND SESSIONS JUDGE
NORTH EAST DISTRICT
KARKARDOOMA COURTS, DELHI
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