Delhi District Court
State vs Riyasat Ali on 14 January, 2020
IN THE COURT OF SHRI SANDEEP YADAV
ADDL. SESSIONS JUDGE02 : SOUTH EAST DISTRICT
SAKET COURT : NEW DELHI
Session Case No. 232/17
FIR No. 57/11
U/s 328/379/411/34 IPC
PS H.N.Din
State
Versus
Riyasat Ali
S/o Shokat Ali
R/o. Village Passonda, Chand Masjid,
PS Sahibabad, Ghaziabad, UP.
...... Accused.
Date of Institution : 16.05.2017
Date of Arguments : 07.01.2020
Date of Judgment : 14.01.2020
JUDGMENT
1. Prosecution version unfolded during the trial that on 5.3.2011 Smt. Kalawati (PW6) who used to work in houses was returning to her house after dropping her guests at Sunder Nagar bus stand. At about 3.30 PM when complainant Kalawati came towards Kaka Nagar after crossing the road, a 12/13 years boy came to PW6 who started crying and told her that he did not have the fare to go to Lal Qila. In the meantime one person SC No. 232/17 1/5 State Vs Riyasat Ali aged 35 years also came there and said that he will drop the child till bus and he also paid Rs. 10/ to the child. After some time that person came back to the complainant and told her that he is not going to bus and when the complainant started speaking to the boy that person unfurled the handkerchief near the face of the complainant as a result of which complainant became unconscious. When complainant regained consciousness after about 34 hours, she realized that her golden chain and golden ear tops were missing. The complainant Kalawati went to the police station after about five days of the incident and gave her statement Ex.PW6/A on the basis of which FIR U/s. 328/379/34 IPC was registered.
2. On 30.03.2012 accused Riyasat Ali was arrested by officials of Crime Branch in a kalandra U/s. 41.1 (d) CrPC and he was produced before the concerned court. SI Kuldeep Kumar (PW7) to whom the investigation of this case was assigned moved an application before the concerned court seeking permission to interrogate the accused. He moved an application for interrogation of the accused and with the permission of the court interrogated accused and he was arrested in this case vide arrest memo Ex.PW7/B. Search was made for the coaccused persons but they could not be arrested. From the personal search of the accused, one plastic pouch was recovered which contained two ATM Cards and two ear tops. Besides three mobile phones were also recovered. Accused disclosed that the ear tops were robbed by him at Kaka Nagar from lady by intoxicating her with handkerchief alongwith his associates Sagar and Arif.
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3. Application was made by the IO for conducting the Test Identification Parade of the accused but accused refused to participate in the TIP. On 06.04.2012 the case property of the case was got transferred from crime branch to PS H.N.Din. The TIP of the case property was got conducted and complainant Kalawati clearly identified the case property.
4. After completion of the investigation final report U/s. 173 CrPC was laid before the court wherein the accused was chargesheeted U/s. 328/379/411/34 IPC.
5. Committal proceedings were done and after committal, accused was charged U/s. 328/379/411/34 IPC to which he pleaded not guilty and claimed trial.
6. The prosecution examined seven witnesses to substantiate the charges against the accused. The accused U/s. 294 CrPC admitted the genuineness of the TIP proceedings of the accused as well as the case property. Thereafter, the accused was examined U/s. 313 CrPC wherein he denied all the incriminating evidence against him. No defence witness was examined.
7. There is a delay of five days in registration of the FIR. The complainant has not explained the delay in registration of the FIR which creates the doubt about the prosecution version.
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8. The accused while refusing to participate in the TIP proceedings stated that he has been shown to the complainant in the police station. The PW6 during cross examination deposed that she was called by the police at the police station where she has identified the accused. Thus accused gave valid reason for his refusing to participate in the TIP proceedings. If the accused was shown to the complainant in the police station, the identification of the accused by the complainant in the court is of no consequence. The obvious conclusion is that identity of a person who robbed the complainant has not been established beyond doubt.
9. It is the case of the prosecution that complainant PW6 was intoxicated by the accused with a handkerchief laced with some intoxicated substance. However, no medical examination of the complainant was got conducted to substantiate this version. The charge U/s. 328 IPC cannot be proved merely on the basis of oral testimony of PW6.
10. As per the deposition of PW2 ASI Bachhu Singh, two tops alongwith other articles were recovered from the accused vide seizure memo marked PW2/E. The original seizure memo was not produced in the court. Even the IO has not cited any witness to prove the original seizure memo. The photocopy of the seizure memo which was taken on record as Ex.PW2/E will not conclusively prove that the robbed articles were recovered from the accused. According to the Section 64 of Indian Evidence Act documents must be proved by primary evidence except in cases covered by 65 of Evidence Act. Primary evidence according to the SC No. 232/17 4/5 State Vs Riyasat Ali Section 62 means the documents itself produced for the inspection of the court. It is obvious that the seizure memo which was prepared at the time of recovery of robbed articles of accused was not proved in accordance with law, thus even charge U/s. 411 CrPC was not proved against the accused.
11. The obvious conclusion is that the prosecution failed to prove charges against the accused beyond reasonable doubts. Accordingly, accused is acquitted of the charge.
File be consigned to Record Room.
Announced in open Court.
(Sandeep Yadav) ASJ02/South East District Saket Courts/New Delhi/14.01.2020 SC No. 232/17 5/5 State Vs Riyasat Ali