Delhi District Court
State vs . 1. Nafis @ Raja S/O Irshad, R/O E-11/49, ... on 25 February, 2015
IN THE COURT OF DISTRICT & SESSIONS JUDGE
NORTH-EAST DISTRICT : KARKARDOOMA COURTS : DELHI
Sessions Case No.40/2013
UID No. 02402R0147672013
State vs. 1. Nafis @ Raja S/o Irshad, R/o E-11/49, Buland
Masjid, Shastri Park, Delhi.
2. Jahid Ali S/o Aashik Hussain, R/o A-151,
Buland Masjid, Shastri Park, Delhi.
3. Dilshad @ D.C. S/o Irshad, R/o E-11/49,
Buland Masjid, Shastri Park, Delhi.
FIR No. 124/2013
PS Seelampur
U/s 394/397/34 IPC.
Date of Institution : 29.05.2013
Date of Reserving for Order : 05.01.2015
Date of Pronouncement : 14.01.2015
JUDGEMENT:
1. Three accused persons were charged under Section 394/34 of the Indian Penal Code for committing robbery and one of them i.e. accused Nafis @ Raja was also charged for causing injury by knife on the person of complainant Chhattar Singh under Section 397 of the Indian Penal Code. All the three accused persons pleaded not guilty and claimed trial.
2. Prosecution examined five witnesses in support of its case.
Thereafter, statements of accused were recorded under Section 313 of the Code of Criminal Procedure, 1973. DW1 Tahira Begum was examined in defence by accused Nafis and Dilshad.
FIR No.124/13 State vs. Nafis and Ors. Page No.1/173. I have heard arguments.
4. PW1 Chhattar Singh is the complainant. He stated that on 13.03.2013 at around 06:10am, he was proceeding on foot near red light traffic point, Shastri Park, to take bus when three boys suddenly came from front side and they tried to snatch his bag. Accused Nafis caused knife injury on his left side near the hip. Accused Jahid Ali had rather asked accused Nafis to not to cause injury as the complainant was an old person, but accused Nafis did not desist. Accused persons snatched bag of complainant, which was containing a mobile phone and Rs.3,750/-. Accused persons took out the mobile phone and money and threw the bag on road. The complainant reached his office and from there went to CRPF Hospital in R.K. Puram and got his injury medically treated. He got the phone call made to police from his office and in the evening went to police station, Seelampur and lodged the report of incident, which is Ex.PW1/A. He was not able to see the third boy and he could not say, if the third accused present in the Court was amongst the three persons who robbed him. He handed over his medical treatment papers along with photocopy of mobile phone purchase bill to police on 16.03.2013 vide seizure memo Ex.PW1/B. There were seven currency notes of Rs.500/- each, two notes of Rs.200/- each and one note of Rs.50/- in the total amount of Rs.3,750/-.
5. PW1 further states that later on, he received information from police regarding recovery of mobile phone and Rs.3,000/- in cash. These items were released to him on superdari from the Court. The mobile phone hand set was having SIM card, but its memory card was found removed. The mobile phone has been exhibited as FIR No.124/13 State vs. Nafis and Ors. Page No.2/17 Ex.P1, photocopy of currency notes released on superdari has been identified as Ex.P2. In cross-examination by the Ld. Chief Prosecutor, complainant/PW1 denied the suggestion that accused Dilshad was amongst the three accused persons involved in robbery. In cross-examination by the Ld. Defence counsel for accused Jahid Ali, PW1 stated that no public person was present at the time of incident. He could not make call on 100 number because his mobile phone was taken away by accused. He did not know at what time phone call to police was made by his office people. Although he has mentioned the details of denomination of Rs.3,750/- in his statement to the police, but it was not there in Ex.PW1/A and as per him the same was part of his supplementary statement under Section 161 of the Code of Criminal Procedure, 1973 dated 22.03.2013. He admitted that he had seen accused Jahid Ali in the police station on 14.03.2013 when he was called by the police.
6. In cross-examination by Sh. Gaurav Vashishth, Amicus Curiae for accused Nafis and Dilshad, PW1 Chhattar Singh stated that he had sustained bleeding injuries and his wearing clothes were stained with blood. Police did not seize the blood stained clothes from him. He had mentioned the circumstances of sustaining injury to doctor at the time of his visit. The doctor did not make any call to the police, rather police was informed by superior officer of the complainant after he reached his office around 10:00-11:00am. Said phone call was not made in his presence. He himself had not made any call to the police.
7. PW1 further stated in his cross-examination that he reached FIR No.124/13 State vs. Nafis and Ors. Page No.3/17 police station at around 09:15-09:30pm and his statement was recorded by SI Brijbir Singh after about 30-45 minutes. As per PW1, after lodging the complaint, he might have gone to the police station on two or four occasions, but the fact regarding recovery of stolen property came to his knowledge only after he had identified the accused persons. He could not say, if currency notes recovered in this case were the same which had been stolen in the incident of robbery. When PW1 had identified accused persons, only two of them were present and the third one was not present. He denied the suggestion that he had identified two accused persons at the instance of the investigating officer. He had seen accused persons either on 14th or on 15th of March, 2013. No recovery was made in his presence.
8. PW2 is Dr. Anil Kumar, who was Senior Medical Officer at CRPF Hospital, R.K. Puram. He had treated PW1 complainant on 13.03.2013 at about 09:00-09:30am when complainant went to him with alleged history of injury over left thigh by knife caused at around 06:00am. The injury was quite deep and the same was stitched with three stitches. The medical report described as OPD card is Ex.PW2/A. The complainant had told to the doctor about the incident. The patient was discharged in about half an hour time.
9. PW3 ASI Dheer Singh was duty officer, who had recorded FIR No. 124/13, on the basis of Rukka produced by SI Brijbir Singh. Computer copy of the FIR is Ex.PW3/A and endorsement on Rukka is Ex.PW3/B. He handed over copy of FIR and original Rukka to Constable Jitender. DD entry in this regard is Ex.PW3/C. In cross- examination, he denied the suggestion that the FIR was ante-timed FIR No.124/13 State vs. Nafis and Ors. Page No.4/17 and antedated.
10. PW4 Constable Kuldeep Vats had joined investigation in this case on 15.03.2013. During patrolling, he along with SI Brijbir Singh and Constable Naam Dev noticed a boy in suspicious circumstances near Shastri Park liquor vend. He was apprehended and a button actuated knife was recovered from him. His name was Nafis. He disclosed that two days before he, his brother Dilshad and their friend Jahid had committed a robbery near Shastri Park red light point and they had robbed a bag containing Rs.3,750/- and one mobile phone. The sketch of knife was Ex.PW4/A; its seizure memo was Ex.PW4/B, arrest memo of accused Nafis was Ex.PW4/C; personal search memo was Ex.PW4/D and disclosure memo of accused Nafis was Ex.PW4/E. On the basis of disclosure of accused Nafis, two other accused, namely, Dilshad and Jahid were apprehended; who confessed their involvement in the incident of robbery. Their disclosure statements were also recorded. On the basis of disclosure and pointing out of accused Jahid Ali, currency notes of Rs.3,000/- in the denomination of Rs.500/- each were recovered from his house and on the basis of disclosure and pointing out of accused Dilshad, a mobile phone set, make Nokia, was recovered from his house. This witness has correctly identified all the three accused persons present in the Court. He identified the mobile phone with photographs on record. The mobile phone was again given exhibit as Ex.P1 and currency notes as Ex.P2. He identified the knife as Ex.P3.
11. PW4 Constable Kuldeep was cross-examined at length. In cross-examination by Sh. Gaurav Vashishth, Amicus Curiae for FIR No.124/13 State vs. Nafis and Ors. Page No.5/17 accused Nafis and Dilshad, this witness stated that there were some persons present at the liquor shop, when they noticed accused Nafis at 12:45pm. He was searched. No public person had joined investigation and the investigating officer did not issue any written notice to those public persons. No specific mark was put on the knife. He denied the suggestion that all writing work was conducted in police station. He also denied suggestion that accused Nafis was lifted from his house in evening and recovery of knife was planted upon him. PW4 further states that there was no public person present at the place from where accused Dilshad and Jahid Ali were apprehended. Accused Dilshad is a bad character of the area. Signatures of accused Dilshad and his mother were not taken on seizure memo of mobile phone, make Nokia. He denied the suggestion that recovery of mobile phone was planted on accused Dilshad. In cross-examination by Sh. R.K. Rai, Ld. Counsel for accused Jahid Ali, PW4 stated that the investigating officer had made departure entry in Rojnamcha before leaving police station on 15.03.2013. The house of accused Jahid Ali was situated in a thickly populated residential area. No neighbour was joined in investigation by the investigating officer.
12. PW5 is SI Brijbir singh, who was the investigating officer of this case. He states that complainant Chhattar Singh had narrated the incident of robbery to him. The complainant wrote report Ex.PW1/A. On the basis of complaint, PW5 Investigating Officer made endorsement Ex.PW5/A directing that an FIR under Section 394/34 of the Indian Penal Code be registered. He received copy of FIR no. 124/2013 after registration of the case. He prepared site plan Ex.PW5/B. PW5 made efforts to nab the culprits, but they FIR No.124/13 State vs. Nafis and Ors. Page No.6/17 could not be traced. On 15.03.2013, on the basis of secret information, PW5 along with other police officials was able to nab accused Nafis @ Raja, who was found in possession of a knife. During interrogation, Nafis disclosed involvement of two other accused, namely, Dilshad and Jahid. Sketch of weapon i.e., knife was drawn as Ex.PW4/A and knife was seized vide seizure memo Ex.PW4/B. Accused Nafis was arrested. He made disclosure Ex.PW4/A. Other two accused were arrested. As per disclosure of accused Dilshad, stolen mobile phone was recovered and as per confession/disclosure of accused Jahid, Rs.3,000/- were recovered. Accused were remanded to judicial custody on 15.03.2013. Application for Test Identification Parade was moved on 16.03.2013, but accused persons refused to participate in the Test Identification Parade.
13. In cross-examination, PW5 stated that he did not make his departure entry in Rojnamcha before leaving the police station on 15.03.2013. However, the same was made by the duty officer. During search at the residence of accused Jahid, some public persons were requested to join, but none agreed. Only one female family member of accused Jahid was present at his house, who was his sister. Seizure memo was prepared in the room from where recovery was made. He denied suggestion that currency notes Ex.P3 were obtained from the complainant and then falsely planted against accused or Jahid Ali was picked up from his house on 13.03.2013. He further stated that he himself recorded statement of complainant at around 08:15-08:30pm and thereafter reached at the spot around 09:15-09:30pm. No physical description or age of culprits was given by the complainant. Probably complainant had FIR No.124/13 State vs. Nafis and Ors. Page No.7/17 given description of clothes worn by the accused. SIM number of stolen mobile phone of Chhattar Singh was not put on tracking as it would have required 15 days' period. Complainant had given photocopy of bill showing purchase of mobile phone. Knife was not got identified from the complainant. Photograph of the knife was also not taken. The investigating officer had not produced knife before the doctor, who had medically examined Chhattar Singh, for further opinion. Chhattar Singh did not produce the clothes, which he was wearing at the time of incident when he visited police station on 13.03.2013. No blood marks were noticed on knife when it was recovered. The bag which was snatched, same was not seized. Nafis was apprehended from an open piece of land behind liquor shop. No mark of identification was put on the knife recovered from accused Nafis. He denied suggestion that knife was planted against this accused or he was picked up from his house on 13.03.2013 and falsely implicated in this case. He also denied that accused Dilshad himself had reached police station, where he was falsely implicated. He further denied suggestion that he did not conduct investigation in fair manner.
14. Statements of accused persons were recorded under Section 313 of the Code of Criminal Procedure, 1973 wherein entire evidence recorded in the case was put to them. But they had stated that they have been falsely implicated.
15. Defence examined DW1 Tahira Begum, who was mother of accused Nafis @ Raja and Dilshad. As per her version, Nafis @ Raja was picked up from his house on 13.03.2013 at around 06:00-06:30pm. When she reached police station with her elder son FIR No.124/13 State vs. Nafis and Ors. Page No.8/17 Dilshad, at that time Dilshad was also detained and both of them were falsely implicated. In cross-examination, she stated that she could not tell as to where her both sons were on 13.03.2013 at about 06:00-07:00am. She did not make any complaint to any authority to the effect that her sons were falsely implicated.
16. After going through the entire evidence and statements of accused persons on record, the chain of events as per prosecution can be described as under :
(i) PW1 Chhattar Singh was injured and robbed by miscreants at around 06:00-06:10am on 13.03.2013 near red light traffic point, Shastri Park. The miscreants had taken away his mobile phone and Rs.3,750/-.
(ii) PW1 Chhattar Singh reached his office and from there he went to CRPF Hospital in R.K. Puram and took medical treatment for his injury at around 09:00-09:30am.
(iii) PW1 Chhattar Singh came to police station, Seelampur, in evening around 09:15-09:30pm (although as per the investigating officer PW5, he had reached at around 08:30pm) and lodged his report.
(iv) As per the version of investigating officer and other police officials, accused persons were nabbed on 15.03.2013 and recoveries of knife, cash of Rs.3,000/- and mobile phone were made, whereas PW1 states that he had been shown accused Jahid Ali in police station on 14.03.2013 in evening itself. As far as other two accused persons are concerned, contention of complainant PW1 is that he had seen them in police station either on 14th March, 2013 or 15th of March, 2013.
(v) Accused persons had refused to participate in Test FIR No.124/13 State vs. Nafis and Ors. Page No.9/17 Identification Parade on 16.03.2013 as all of them were shown to the complainant much prior to the conduct of Test Identification Parade.
17. For the delay of more than 14 hours in lodging FIR, there is no reasonable explanation on record. The incident is stated to have taken place around 06:10am in Shastri Park area. Instead of going to the nearest police station or hospital, complainant chose to go to his office in South Delhi and from there he went to CRPF Hospital in R.K. Puram. As per the complainant, his office people had informed the police at around 10:00-11:00am. But neither he nor the police officials have brought anything on record to show that any such information was given to police by office colleagues of complainant or any such information was even otherwise received by the police officials. As per the complainant, he had reached police station Seelampur at around 09:15-09:30pm whereas the investigating officer PW5 stated that he had recorded statement of complainant at about 08:15-08:30pm.
Why this matter was not reported to police for more than 14 hours? There is no reasonable explanation on record. The unexplained delay raises considerable doubt regarding the evidence of the complainant. Even at the time of getting medical treatment, the history was not mentioned on the OPD slip Ex.PW2/A. Although it is mentioned that the complainant had got injury over left thigh from knife. The entire case of prosecution regarding the incident becomes doubtful and accused are entitled to benefit of doubt.
FIR No.124/13 State vs. Nafis and Ors. Page No.10/1718. The first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced in the trial. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as, the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of an after thought. It is, therefore, essential that the delay in lodging the report should be satisfactorily explained. No such explanation has been offered by the prosecution.
19. In the present case, it is admitted by the complainant himself that he was shown the accused persons in police station. Accused Jahid Ali was shown to him in police station on 14.03.2013 itself when he was called by the police. Whereas the case of prosecution is that accused Jahid Ali was arrested on 15.03.2013. As far as other two accused persons are concerned, even they were shown to the complainant either on 14th March, 2013 or 15th March, 2013. Test Identification Parade was refused by the accused persons on 16.03.2013. If the complainant himself is admitting that he had seen accused persons on 14th March, 2013 or 15th March, 2013, then there was no question of conducting Test Identification Parade on 16.03.2013.
20. As far as recoveries are concerned, there is nothing on record to connect knife recovered from accused Nafis @ Raja with FIR No.124/13 State vs. Nafis and Ors. Page No.11/17 injury caused on the person of complainant PW1. Neither the knife was shown to the complainant nor the same was sent to PW2 Dr. Anil Kumar to take his opinion whether the injury on the person of PW1 Chhattar Singh could have been caused by said weapon. Mere recovery of knife, even if the prosecution story is believed, from the accused Nafis will not connect him with robbery.
21. In case of accused Jahid Ali, recovery shown from him is of six currency notes of Rs.500/- each totalling to Rs.3,000/-. PW1 Chhattar Singh himself stated that he was not sure whether these are the same currency notes which were robbed from him. So, mere recovery of Rs.3,000/- from accused Jahid Ali cannot be taken as foolproof evidence to connect him with the offence of robbery.
22. As far as accused Dilshad is concerned, PW1 Chhattar Singh himself has refused to identify him as one of the robbers in spite of being cross-examined by Ld. Chief Prosecutor. Mobile phone of PW1 was recovered from accused Dilshad, which has been identified by complainant as belonging to him. The recovery of mobile phone was made on 15.03.2013 whereas the incident is of 13.03.2013. As per the presumption created under Section 114 of the Evidence Act, (Illustration no.1) it is clear that if a person is found in possession of stolen/robbed property immediately after the theft/robbery, and the said person is unable to account for possession of said stolen/robbed property, it is presumed that either he himself had stolen/robbed said property or he had knowledge that said property was stolen/robbed. As stated earlier, PW1 complainant has not identified accused Dilshad as one of three FIR No.124/13 State vs. Nafis and Ors. Page No.12/17 assailants. So, the only offence under which he can be convicted is Section 411 of the Indian Penal Code as he was having custody of stolen property and he had reasons to believe that it was the stolen/robbed property. As per Section 222 of the Code of Criminal Procedure, 1973, an accused can be convicted under minor offence, even if charge for the same has not been framed, if prosecution fails to prove major offence but proves the ingredients of minor offence.
23. Since accused Nafis was carrying a buttondar knife, at a public place, when he was apprehended; so he has committed an offence punishable under Section 25 of the Arms Act as his act was in violation of the notification issued by Delhi Government vide notification No.E-13/203/78- Home(C) dated 17th February, 1979 wherein the Administrator of the Union Territory of Delhi, directed that Section 4 of the Arms Act shall apply to possession and carrying of spring actuated knives, gararidar knives or buttondar knives which open or close with any of the mechanical device with a blade of 7.62 Cms or more in length and 1.72 Cms or more in breadth. Thus, the said notification prohibits possession of a knife of the aforesaid nature. Hence, accused Nafis is hereby convicted under Section 25 of the Arms Act. It is needless to mention here that under Section 222 of the Code of Criminal Procedure, 1973, where although the accused was charged with major offence but if minor offence is proved, he can be convicted in minor offence. Here, although the accused Nafis was charged under Section 397 of the Indian Penal Code for being armed with a knife and causing injury while committing robbery, which could not be proved beyond doubt but possession of knife in violation of Notification under FIR No.124/13 State vs. Nafis and Ors. Page No.13/17 Section 4 of the Arms Act by him has been proved; so he is to be convicted under the minor offence, although not charged under the same.
24. As far as accused Jahid Ali is concerned, mere recovery of Rs.3,000/- does not lead to a conclusion that said amount was part of the property robbed. The complainant himself has stated that he could not say whether currency notes recovered in this case are the same, which were stolen in incident of robbery.
25. There is nothing on record to connect three accused persons with the incident of robbery as there is only one oral statement of complainant given in the Court that he identified two accused persons, namely, Nafis @ Raja and Jahid Ali. As stated earlier, the complainant had seen accused Jahid Ali in police station on 14.03.2013 and other two accused persons either on 14th March, 2013 or 15th of March, 2013, whereas story of prosecution is that all the three accused persons were arrested on 15.03.2013. As stated earlier, there is no satisfactory explanation of delay of more than 14 hours in lodging the FIR. The benefit of doubt is to be extended to the accused persons. Prosecution has failed to prove beyond reasonable doubt that all the three accused persons were involved in the incident of robbery qua PW1 Chhattar Singh. Hence, they are acquitted from charge under Section 394/34 of the Indian Penal Code. Similarly, prosecution could not prove beyond reasonable doubt that accused Nafis had used a knife and caused injury to complainant while committing robbery, so he is acquitted under Section 397 of the Indian Penal Code.
FIR No.124/13 State vs. Nafis and Ors. Page No.14/1726. Accused Nafis @ Raja is convicted under Section 25 of the Arms Act for possessing a button actuated knife in violation of Notification No. E-13/203/78- Home (C) dated 17.02.1979.
27. Accused Dilshad is convicted under Section 411 of the Indian Penal Code for being found in possession of robbed mobile phone of Nokia make of complainant.
28. Accused Jahid Ali is acquitted.
Announced in the Open Court (Talwant Singh)
On this 14th day of January, 2015 District & Sessions Judge, NE
Karkardooma Courts, Delhi
FIR No.124/13 State vs. Nafis and Ors. Page No.15/17
IN THE COURT OF SH. RAKESH SIDDHARTHA, DISTRICT AND SESSIONS JUDGE, NORTH EAST, KARKARDOOMA COURTS, DELHI Sessions case no. 40/2013 UID no. 02402R0147672013 State vs. 1) Nafis @ Raja s/o Irshad r/o E-11/49, Buland Masjid, Shastri Park, Delhi.
2) Jahid Ali s/o Aashik Hussain, r/o A-151, Buland Masjid, Shastri Park, Delhi.
3) Dilshad @ D.C s/o Irshad r/o E-11/49, Buland Masjid, Shastri Park, Delhi.
FIR no. 124/2013 PS Seelampur u/sec. 394/397/34 IPC Date of Institution: 29.05.2013 Date of reserving for order 20.02.2015 Date of passing of order: 25.02.2015 ORDER ON SENTENCE
1. Arguments heard on the point of sentence from ld. counsel for convicts as well as from ld. Chief Prosecutor for the State.
2. Ld. counsel for convicts has prayed for leniency in regard to sentence. Accused Nafees has been convicted for an offence under Sentence 25 of the Arms Act while accused Dilshad has been convicted for an offence under Section 411 IPC vide judgement dated 14.01.2015. Keeping in view the fact that both convicts have been confined to JC for a substantial period of time and offence committed by them does not seem to be very grievous or heinous in nature. For that matter, an opportunity should be granted to them to rectify their character and assimilate in the society and become useful members thereof. A word of caution is given to them that hereinafter they shall mend their ways and behave as proper citizens. They shall not indulge in any illegal activity hereinafter. In consequence, I sentence both accused/convicts to period of incarceration FIR No.124/13 State vs. Nafis and Ors. Page No.16/17 already undergone by them. They shall be released forthwith, if not wanted in any other case. Both the accused/convicts shall furnish bail bonds.
Announced in the open Court on (RAKESH SIDDHARTHA) 25th of February, 2015 District & Sessions Judge,NE KKD Courts, Delhi FIR No.124/13 State vs. Nafis and Ors. Page No.17/17