Delhi District Court
State vs Mushir Khan @ Mustak & Ors. on 30 August, 2013
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
S.C. No.: 1/10
(Unique ID No.02403R0438562009)
FIR No.:553/05
U/s 392/395/397/412/120B/34 IPC
State Vs Mushir Khan @ Mustak & Ors.
PS: Mehrauli
State
Versus
Mushir Khan @ Mustak
S/o Mazid Khan
R/o Village: Bhamora,
Post: Nraich, PS: Modha,
District : Hamirpur, U.P.
Date of Initial Institution : 23.11.2005
Date of Institution in this Court : 16.02.2010
Date of Pronouncement Order : 30.08.2013
JUDGMENT
1. Case of the prosecution, as can be culled out from the charge sheet is that on 15.09.2005 at about 1:45 p.m, DD No.12 was received pertaining to a robbery committed by four persons at gun SC No.1/10 FIR No.553/05 State v/s Mushir Khan @ Mustak & Ors Page 1/20 point at Har Govind Enclave. ASI Ram Bhaj and Ct. Sukhram reached the spot and met complainant Badrikant and recorded his statement. On his statement, FIR No.553/05 was registered u/s 392/395/397/412/120B/34 IPC. Accused Mushir Khan and co- accused Dafedar were arrested.
2. After completion of investigation, charge sheet was filed on 23.11.2005. However, co-accused Dafedar jumped bail and was declared Proclaimed Offender on 16.12.2009 by the court of Ld.ACMM. Since the offence u/s 397 IPC is exclusively triable by a Sessions Court, case was committed to this Court.
3. On 30.11.2011, charge was framed against the accused Mushir Khan u/s 392/397/411/34 IPC to which he pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined nine witnesses in all.
4.1 PW-1 HC Sukhram has deposed that on 15.09.05, at about SC No.1/10 FIR No.553/05 State v/s Mushir Khan @ Mustak & Ors Page 2/20 1.25pm, ASI Ram Bhaj received DDNo. 12 that 4-5 persons had taken away goods on the point of arms from C-31, Argovind Enclave. They both reached there and there, complainant Badrikant Jha met them. At the spot, SHO as well as In-charge-PP Suresh Verma also reached alongwith police party. IO/ASI Ram Bhaj also called Crime Team at the spot. IO recorded statement of Badrikant Jha and prepared rukka and the same was handed over to him for registration of FIR at 3.15pm. He went to PS and after getting the case registered, he returned back at the spot and he handed over copy of FIR and original rukka to IO. In his cross-examination, he has stated that IO received DD No. 12, in the PP, IGNOU. They reached at the spot at around 1.40pm. He returned back with copy of FIR and original rukka at about 5.10pm. IO had recorded statement of complainant Badrikant Jha only, in his presence.
4.2 PW-2 Smt. Sanju Jha deposed that on 15.07.2005, she alongwith her mother-in-law and father-in-law was present in the house. At about 12.45pm, someone knocked the main door of the house and the same was opened by her mother-in-law and two SC No.1/10 FIR No.553/05 State v/s Mushir Khan @ Mustak & Ors Page 3/20 persons who knocked the door, had told that they had come to install the electricity meter. At that time, they were two persons. After hearing their voice, she came out of her bed-room and at that time, her father-in-law was having the file containing the documents of electricity connection, and her mother-in-law had offered water to those two persons. As the electricity meter had to be installed at the main door, so, the main door was opened, and in the meantime, two other persons also entered the house. All those persons were of the age around 25-26-27 years. Suddenly, two persons took out kattas in their hands and they asked to hand over all the jewellery articles. Thereafter, they took keys from her mother-in-law and went inside the bed-room of her mother-in-law and they took out all the jewellery from the briefcase as well as iron box. The said jewellery articles were - one gold chain, one gold pair tops, one pair gold baali, one gold ring and silver jewellery. They also took out cash Rs.11,500/- from the boxes of her mother-in-law. They also removed one pair gold tops from the ear of her mother-in-law. After that, they entered into her bed-room, and from there, they took out one pair gold tops, two gold rings, one necklace set having gold polish and one pair SC No.1/10 FIR No.553/05 State v/s Mushir Khan @ Mustak & Ors Page 4/20 hathsankat (hathfool) having gold polish, two gold bracelet, 5-6 pairs silver bicchuas, two wrist watches, two mobile phone (one make Reliance, another, she could not recall). They also removed one pair ear-rings from her ears. After looting them, they ran away with all the jewellery articles and they also threatened them that if they disclosed the incident to anyone, they will return back and kill them. The said persons remained in the house for about 20-25 minutes. Her father- in-law informed police at 100 number. Police came at their house. Police also called photographer and spot was got photographed. Police also enquired from her and recorded her statement. However, she could not identify those persons. This witness was cross- examined by the Ld. Addl. PP on the point of identity of the accused but to no avail. In her cross-examination on behalf of the accused, she stated that before the date of incident, there was no electricity meter in their house, but, there used to be electricity before the date of incident. She could not tell the source of electricity at that time. The accused persons did not had their faces covered when they entered the house. Their faces were visible. She could not tell whether the accused present in the Court, was also present on the day SC No.1/10 FIR No.553/05 State v/s Mushir Khan @ Mustak & Ors Page 5/20 of incident at our house or not but she stated that she had not seen the accused present in the Court ever earlier. She could not tell how much cash was taken away by the accused persons on the day of incident. Her statement was recorded by the police, but, she could not tell as to whether she had told the police that cash amounting to Rs.11,500/- was taken away by the accused persons. 4.3 PW-3 ASI Madan Singh is the Duty Officer who proved recording of FIR as Ex. PW-3/A and he proved his endorsement of rukka as Ex. PW-3/B. 4.4 PW- 4 Badri Kant Jha stated that in the month of August 2005, he had applied for a new electricity connection. On 15.09.2005, he alongwith his wife, daughter -in-law were present in the house. At about 12.45pm, someone knocked the door of the house and his wife had opened the door and four persons told that they had come for installing the electricity meter at their house, and they had asked for the documents for applying the new electricity connection. When he showed them the demanded documents, they were thrown away. SC No.1/10 FIR No.553/05 State v/s Mushir Khan @ Mustak & Ors Page 6/20 Three persons reacted and flashed weapons. One of them asked him to handover the entire cash, but he stated that they had no cash. He poked knife on his neck from side. Another one was standing by his side with a pistol-like weapon. The third one was standing in front of him with a daav. The fourth person was standing, and seeing this entire scene his wife threw the keys in front of him who picked up the same and he alongwith one more accused went inside the house. He was too scared and had closed his eyes as the person who had closed his mouth, was still maintaining his position. They remained inside the house for about 20 minutes and after committing the dacoity, they left. He then, went to the market to make a telephone call at 100 number and immediately thereafter, police started coming. Police recorded his statement, which was proved as EX.PW4/A. He found that the assailants had taken away two mobile phones, four wrist watches, cash Rs. 11,500/-, two medals and jewellery articles. After about 10 days, police of PP-Maidan Garhi called him there, where, they had shown him some jewellery articles, one mobile phone, one wrist watch and two medals, and he had identified all the articles except jewellery articles for which, he told the police that SC No.1/10 FIR No.553/05 State v/s Mushir Khan @ Mustak & Ors Page 7/20 these will be identified by his wife. On 21.11.2005, he had identified mobile phone (Nokia) of his son. On the same day, his wife also identified recovered jewellery articles. He could not identify accused Mushir Khan in court though he was cross examined by the prosecutor on this point.
PW-5 Smt. Mahakali Jha stated that on 15.07.2005, she alongwith her daughter-in-law and her husband was present in the house. At about 12.45pm, someone knocked the main door of the house and the same was opened by her and two persons who knocked the door, had told that they had come to install the electricity meter. At that time, they were two persons. After hearing their voice, her daughter-in-law came out of her bed-room and at that time, husband of the witness was having the file containing the documents of electricity connection. As the electricity meter had to be installed at the main door of our house, so, the main door was opened, and in the meantime, two more persons also entered the house. All those persons were of the age around 25-26-27 years. Suddenly, two persons took out kattas in their hands and they asked to hand over all SC No.1/10 FIR No.553/05 State v/s Mushir Khan @ Mustak & Ors Page 8/20 the jewellery articles, lest they would be killed. Thereafter, they took keys from her and went inside her bed-room and they took out all the jewellery from the briefcase as well as from iron box. The said jewellery articles were - one gold chain, one gold pair tops, one pair gold baali, one gold ring and silver jewellery. They also took out cash Rs.11,500/- from boxes. They also removed one pair gold tops from her ear. After that, they entered into bed-room of her daughter-in-law, and from there, they took out one pair gold tops, two gold rings, one necklace set having gold polish and one pair hathsankat (hathfool) having gold polish, two gold bracelet, 5-6 pairs silver bicchuas, two wrist watches, two mobile phone (one make Reliance, another, she could not tell). They also removed one pair ear-rings from the ears of her daughter-in-law. After looting them, they ran away with all the jewellery articles and they also threatened that if the incident was disclosed to anyone, they will return back and kill them. The said persons remained in the house for about 20-25 minutes. Her husband informed police at 100 number. Police came at their house. Police also called photographer and spot was got photographed. She was however unable to identify the accused, although she too was cross SC No.1/10 FIR No.553/05 State v/s Mushir Khan @ Mustak & Ors Page 9/20 examined by the ld. Addl. PP. In her cross examination, she stated that the accused persons did not had their faces covered when they entered the house. Their faces were visible.
PW-6: Ct. Ram Avtar stated that on 26.09.2005, he joined the investigation of the present case with ASI Ram Bhaj and Ct. Hari Singh. On that day, IO/ASI Ram Bhaj had a secret information about the accused persons who were involved in the present case. They all went to Som Bazar, Masjid Wali Gali, Khoda Colony, Ghaziabad and when they tried to apprehend the accused Dafedar from his rented house, he jumped from the first floor and he sustained injuries on his left leg. However, he alongwith Ct. Hari Singh apprehended him and he was interrogated and after interrogation he was arrested. His arrest memo was proved as Ex. PW6/A, his personal search memo was proved as Ex.PW6/B and his disclosure statement was proved as Ex.PW6/C bears my signatures at point A and in pursuance to the disclosure statement, he got recovered one mobile phone make Nokia-2300 and some jewellery articles and cash from his Almirah of his rented house. IO converted the same into separate pullandas and same were sealed with the seal of 'RBS' and mobile phone was seized SC No.1/10 FIR No.553/05 State v/s Mushir Khan @ Mustak & Ors Page 10/20 vide seizure memo as well as pointing out memo which is Ex.PW6/D and jewellery articles and cash were seized vide seizure memo-cum- pointing out memo as Ex.PW6/E. On the same day, accused Dafedar led them to the rented room of accused Mushir Khan which was situated in the same street and at his instance, accused Mushir Khan was apprehended. He also got recovered some jewellery articles as well as cash, and IO seized the same after converting into pullanda and the pullanda was sealed with the seal of 'RBS' and the same was seized vide seizure memo Ex.PW6/G. After that, they searched other accused persons but there was no clue of those persons. Accused Mushir Khan's arrest was proved vide arrest memo Ex.PW6/H and his personal search memo as Ex.PW6/I. He identified the accused Mushir Khan.
4.7 PW-7 Mohd. Afsar deposed that he does not know anything about this case. The witness was declared hostile and was cross- examined by the Ld. Addl. PP but he stated that he did not make any statement to the Police.
SC No.1/10 FIR No.553/05 State v/s Mushir Khan @ Mustak & Ors Page 11/20 4.8 PW-8 Sidharth Sharma, a judicial officer proved conducting of TIP of case property on 21.11.2005 in which the complainant Badri Nath and his wife Maha Kali Jha had identified the case property correctly. The TIP proceedings were proved as Ex. PW8/B and copy of the TIP proceedings was allowed to the IO on the same day vide endorsement Ex. PW8/C. 4.9 PW-9 ASI Ram Bhaj deposed that on 15.09.2005 at about 1:45 p.m, he received a DD No.12 from Ct. Subh Ram pertaining to a robbery committed by four persons at gun point at Har Govind Enclave. He proved the DD as Ex. PW9/X. He reached the spot alongwith Ct. Subh Ram. He recorded the statement of the complainant as Ex. PW4/A and prepared Rukka on it as Ex.PW9/A and handed over the same to Ct. Subh Ram for registration of the FIR. He prepared the site plan at the instance of the complainant as Ex.PW9/B. Ct. Subh Ram came back at the spot alongwith the copy of the FIR and original Rukka. They searched for the accused persons but they could not be found. On 26.09.2005, a secret information was received that Mushir Khan and Dafedar, who were SC No.1/10 FIR No.553/05 State v/s Mushir Khan @ Mustak & Ors Page 12/20 wanted in this case, would be found in Khora Colony. He alongwith Ct. Hari Singh, Ct. Ram Avtar and the secret informer reached at Khora Colony and at the instance of the secret informer, both of them were apprehended. Their disclosure statements were recorded. Both the accused persons were arrested. Accused Mushir Khan got recovered one pair of ear ring, two pairs ear tops, and one ring, from his house, beneath the mattress. The same were converted into pullanda and sealed with the seal of 'RBS' and were seized vide seizure memo EX.PW6/G. Accused Dafedar got recovered one Nokia phone and Rs. 5,000/-, and jewellery items from his house. The same were seized vide seizure memo EX.PW6/D and EX.PW6/E. Accused Mushir Khan pointed out a place where he had parked Maruti Van No. DL 5C 0178, in which he alongwith the accused persons had come for the purpose of committing robbery. This pointing out memo was proved as Ex.PW9/C. From there, they came back to the PS and the case property was deposited in the Malkhana. On 28.09.2005, accused Dafedar got recovered the Maruti car No. DL 5C 0178 from outside the house of Lokpriya Vihar, Budh Nagar, Khora Colony, Ghaziabad and the car was seized vide seizure memo SC No.1/10 FIR No.553/05 State v/s Mushir Khan @ Mustak & Ors Page 13/20 EX.PW9/D. Subsequently, TIP of accused Mushir Khan got conducted but he refused to take part in the TIP. TIP of the recovered jewellery articles was got conducted, in which the complainant's wife identified the jewellery items. He identified accused Mushir Khan in the court as other accused Dafedar had absconded while on bail. In his cross-examination, he stated that no separate list was given by the complainant regarding the articles which were robbed from his house. He could not tell if cash memos or receipts of the jewellery articles were given to him or not nor he could not tell if he had asked for those receipts or not. He could not tell whether he had informed local police at Ghaziabad at the time of arrest or not. He first arrested Mushir Khan. He could not tell the house number from where both the accused persons were apprehended. He stated that no public witness was associated at the time of recovery from Mushir Khan. He could not tell if wife or children of accused Mushir Khan were present in his house at the time of his arrest or not. He could not tell if the said house was own house of Mushir Khan or a rented house. He stated that he had intimated by telephone to relatives of the accused about his arrest but he could not tell which relative was SC No.1/10 FIR No.553/05 State v/s Mushir Khan @ Mustak & Ors Page 14/20 informed about the arrest. He further stated that the house from where recoveries were made was a double storeyed house and accused lived on second floor of that house. He could not tell in which directions the said Almirah was kept from where accused had got recovered the articles. He could not tell if the said Almirah was kept in the first room or in the second room nor he could tell the size of the said house. He stated that he had not shown the recovered articles to the complainant after recovery and before TIP. He had not asked the complainant to bring any ownership proof of the recovered articles.
5. The TIP proceedings of accused Mushir Khan were admitted and the same were exhibited as Ex. 'X'.
6. All the incriminating circumstances were put to the accused but he denied his involvement. He stated that he has been falsely implicated in this case.
7. Ld. Counsel for the accused stated that the prosecution has SC No.1/10 FIR No.553/05 State v/s Mushir Khan @ Mustak & Ors Page 15/20 failed to prove its case beyond all reasonable doubts. It is stated that in the arrest memo, no place of arrest is mentioned. It is stated that the alleged recoveries made by the IO were not witnessed by any independent public witness, although, the recoveries are stated to have been effected from a place which is habitated. It is stated that there are material contradictions in the deposition of the witnesses. It is stated that the accused was not identified by the complainant or his other family members to be the assailant. It has been argued that since the accused has not been identified by the complainant or his family members, he cannot be convicted for the offence of robbery. So far as the recoveries are concerned, it has been stated that the complainant had stated in his cross-examination that he was shown the recovered articles in the PS and hence the identification of recovered articles loses its value during TIP. It has, therefore, been prayed that the accused be acquitted.
8. Ld. Ld. Addl. PP, on the other hand, argued that the accused refused to participate in the judicial TIP, which is a circumstance which goes against the accused. Further, it is stated that the various SC No.1/10 FIR No.553/05 State v/s Mushir Khan @ Mustak & Ors Page 16/20 jewellery articles were recovered from the accused which were duly identified by the wife of the complainant during TIP proceedings, and hence the accused be convicted for the offence under Section 392/411 IPC.
9. I have heard both the sides and have perused the records of the case. So far as the identification of the accused is concerned, he was not identified by either the complainant PW-4 Badri Kant Jha or his wife PW-5 Maha Kali or his daughter-in-law Sanju Jha. PW-7 is hostile and prosecution could not elicit anything from him. PW-4 Badrikant Jha has stated that the accused persons did not had their faces covered when they entered the house and their faces were visible. So it is not that the complainant or his family members had not seen the assailants when they entered his house. All of them saw the assailants but they refused to identify the accused Mushir Khan in Court. Refusal of the accused to participate in TIP is one circumstance that goes against him, but then that alone is not sufficient to convict the accused when the complainant and other witnesses could not identify him in Court. When the accused has not SC No.1/10 FIR No.553/05 State v/s Mushir Khan @ Mustak & Ors Page 17/20 been identified by the complainant or his family members, it is to be seen if there are circumstances with which accused can be associated to the present offence.
10. According to prosecution, ear rings and ear tops were recovered from accused Mushir Khan and the same were identified by PW-5 Maha Kali, who is wife of the complainant. However, the arrest and the subsequent recoveries are not free from doubt. PW-6 Ct. Ram Avtar stated that firstly accused Dafedar was arrested and thereafter accused Mushir Khan was arrested. In contradiction to it, PW-9 IO/SI Ram Bhaj stated that both the accused persons were arrested together and out of them accused Mushir Khan was arrested first. It is thus not clear whether the accused persons were arrested simultaneously or separately. Both the accused persons were arrested from habitated areas but no independent public witness was associated in their arrest. Even the place of arrest is not mentioned in the arrest memo Ex. PW6/H of the accused Mushir Khan, and the said column No. 5 is blank. The personal search memo of this accused does not contain any particulars like FIR number or DD SC No.1/10 FIR No.553/05 State v/s Mushir Khan @ Mustak & Ors Page 18/20 number or date or Section. The accused Mushir Khan is stated to have been arrested from ground floor, according to PW-6 Ct. Ram Avtar but according to IO/SI Ram Bhaj, accused Mushir Khan was living on second floor of a double storeyed house. This creates doubt regarding arrest of the accused. The arrest of accused Mushir Khan is thus not free from doubt as the place of arrest has not been mentioned even in his arrest Memo Ex. PW-6/H.
11. So far as the identification of recovered articles are concerned, PW-6 Ct. Ram Avtar and PW-9 SI Ram Bhaj stated that the jewellery articles after recovery were converted into pullanda and were sealed with the seal of 'RBS' and after return to PS, the articles were deposited in the Malkhana. PW-9 has also stated that after recovery and before TIP, the articles were not shown to the complainant. However, PW-5 Maha Kali, in her cross-examination, has stated that before identification of jewellery in the PS, the jewellery was shown to them at their house. PW-4 Badri Kant Jha, in his examination-in- chief, has stated that after about 8 days, he was called in Police Post, Maidan Garhi and he was shown some jewellery articles which he SC No.1/10 FIR No.553/05 State v/s Mushir Khan @ Mustak & Ors Page 19/20 stated that his wife will identify them. From the deposition of these two witnesses, it is clear that the jewellery articles were shown to the complainant and his family members even before their judicial TIP and identification of the jewellery articles on 21.11.2005 in court by the complainant and his wife thus loses its value.
12. As such, the prosecution has neither been able to show that the applicant was involved in the present offence or that the recoveries were effected from him. The prosecution is duty bound to prove its case beyond all reasonable doubts and the said onus has not been discharged by the prosecution. There are doubts in the prosecution story and its benefit shall go to the accused, as per law. As a result, the accused Mushir Khan is entitled to the benefit of doubt and is hereby acquitted.
Announced in the open Court. (Rajeev Bansal)
Dated: 30.08.2013 ASJ-3/South District
Saket Courts, New Delhi
SC No.1/10 FIR No.553/05 State v/s Mushir Khan @ Mustak & Ors Page 20/20