Delhi District Court
State vs . Mohd. Sameer @ Guddu @ Hafizul Rehman on 15 July, 2022
IN THE COURT OF SHRI SHUBHAM DEVADIYA,
METROPOLITAN MAGISTRATE-05, WEST DISTRICT,
TIS HAZARI COURTS, DELHI
FIR No. 79/2008
PS Anand Parbat
Cr. Case No. 73250/2016
State Vs. Mohd. Sameer @ Guddu @ Hafizul Rehman
CNR No. DLWT02-000670-2008
JUDGMENT
(a) Sr. No. of the case 73250/2016
(b) Date of offence 09.06.2008
(c) Complainant Mohd. Shehzad
(d) Accused persons Mohd. Sameer @ Guddu @ Hafizul Rehman
(e) Offences Under Sections 392/34 IPC & 174A IPC
(f) Plea of accused Pleaded not guilty
(g) Final Order Acquittal u/s 392/34 IPC
Conviction u/s 174A IPC
(h) Date of institution 20.10.2008
(i) Date of judgment 15.07.2022
BRIEF FACTS AND REASONS FOR DECISION
Digitally signed by
SHUBHAM SHUBHAM DEVADIYA
DEVADIYA Date: 2022.07.15
16:18:41 +0530
FIR No. 79/08 State Vs. Mohd. Sameer @ Guddu 1 of 27
PS Anand Parbat
1. The case of prosecution is that on 09.06.2008 at about 9:45 A.M. near Gumbad Nehru Nagar, Anand Parbat, Delhi, accused Mohd. Sameer along with accused Salim (since expired), in furtherance of their common intention committed theft of mobile phone belonging to the complainant and in order to commit the theft voluntarily caused wrongful restrain to the complainant. Further, the case of the prosecution is that, when the accused Mohd. Sameer failed to appear before this court on 30.04.2015, in pursuance of the process u/s 82 CrPC issued on 11.11.2014 of process u/s 82 crpc, he was duly declared as absconder.
2. After investigation, Chargesheet and supplementary chargesheet were filed in the Court for commission of offences under Section 392/34 IPC & 174A IPC.
3. Court took cognizance of above offences and accused was summoned to appear before the Court. After the appearance of the accused, copies of chargesheet and relevant documents were supplied to accused in compliance of Section 207 CrPC and charges for offences punishable under Section 392/34 IPC were framed against accused on 18.08.2010, and u/s 174A IPC on 20.11.2015 to which he pleaded not guilty and claimed trial. The accused Mohd. Sameer on 05.03.2022 admitted the genuineness of proclaimed offender order dated 09.06.2015 u/s 294 CrPC which is EX.AD-1. Thereafter, the matter proceeded for prosecution evidence accordingly.
Digitally signed by SHUBHAM SHUBHAM
DEVADIYA
DEVADIYA Date: 2022.07.15
16:18:51 +0530
FIR No. 79/08 State Vs. Mohd. Sameer @ Guddu 2 of 27
PS Anand Parbat
4. In prosecution evidence, the prosecution has examined 09 witnesses. The testimony of the witnesses in a nutshell are as below:
PW1 Mohd. Shahzada: He deposed that he does not remember the exact year and month but it was 4-5 years back when the incident took place. It was 8th or 9th day of that month. On that day he was going to Nehru Nagar from his house to purchase some articles used in repair work of electricity. At around 9:00 A.M. to 10:00 A.M. when he reached near Gumbad he saw two persons standing there. Those persons asked him to produce his mobile phone to make one call. Those persons started going after taking his mobile phone. Those persons refused to return his mobile phone. He raised an alarm of Chor Chor, then one PCR van arrived and apprehended those persons. After that they were brought to PS Anand Parbat. Mobile phone was recovered from accused persons when they were apprehended by officials of PCR van. His mobile phone was wrapped in a cloth pulinda and seized. He signed 2-3 documents. He was asked to produce ownership document of mobile phone. He told the police that he had purchased old mobile phone and gave the photocopy of identity card of the person from whom he Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.15 16:18:59 +0530 FIR No. 79/08 State Vs. Mohd. Sameer @ Guddu 3 of 27 PS Anand Parbat had purchased the mobile phone. The accused persons were put behind the bars. Some documents signed by him were filled and some were blank. He correctly identified his signature on seizure memo, his statement u/s 161 CrPC, arrest memos, search memos which were marked as Mark P-1/A Mark P-1/B, Mark P-1/C, Mark P-1/D, Mark P-1/E, and Mark P-1/F respectively. He also identified accused Mohd. Sameer who was present in the Court.
During cross examination, PW1 deposed that he is not literate and cannot read or write Hindi, English and Urdu. He did not read the documents, which were signed by him. He admitted that accused Sameer was residing in his neighborhood, therefore, he knew him prior to the incident. No quarrel had taken place with this accused prior to the incident. He had not handed over any bill / invoice of this mobile to IO because he did not have any bill / invoice of the said mobile phone. In his presence police did not record statement of his foofa. He did not tell the police about the fact that two persons had come to him and had taken his mobile on the pretext of making call. He clarified that he did not tell so because police did not ask him. He was not doing the work of supply of water. Police had not Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.15 16:19:07 +0530 FIR No. 79/08 State Vs. Mohd. Sameer @ Guddu 4 of 27 PS Anand Parbat prepared the sketch of mobile phone in his presence. He had informed the police about his mobile number. Confronted with statement Ex.PW1/D1 wherein it is not so recorded. There was no rush / mob at the place where the accused were apprehended. He denied the suggestion that accused Sameer was not present at the spot or that he did not abuse him.
PW2 ASI Julita was duty officer. She deposed regarding factum of registration of FIR on the basis of rukka presented before her.
PW3 Sh. Kamal Ex. Const. He deposed that on 09.06.2008 he was on patrolling duty in his area along with HC Suresh. T around 10:00 A.M. when they were present near police booth, Taliwali Basti. In the meantime, they saw two persons coming from the front side while running who were chased by one boy. The boy who was chasing was making noise of "pakro pakro". He stopped the vehicle Power-5 and apprehended those boys near Taliwali Police Booth with te help of HC Suresh. The name of apprehended person was revealed as Salim and Sameer. One mobile phone was recovered from the casual search of accused Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.15 16:19:13 +0530 FIR No. 79/08 State Vs. Mohd. Sameer @ Guddu 5 of 27 PS Anand Parbat Sameer. The name of the person who was chasing those boys was revealed as Shehjad, who is the complainant.
Shehjad told them that accused persons had snatched his mobile phone. He identified his mobile of Motorola Company which was recovered from the possession of accused Saleem. IC Van informed Control Room in this regard. The public persons gathered at the spot and due to that they shifted the accused and complainant to PS. The accused persons were handed over to IO. IO put the mobile phone in white color cloth pulinda and sealed with the seal of DR. The seizure memo of mobile phone is Mark PA now Ex.PW3/A. he correctly identified the accused Mohd Sameer.
During cross examination, PW3 deposed that no public person joined in the investigation from the crowd gathered at the spot. He admitted that nothing was recovered from the possession of Sameer. He denied the suggestion that complainant had told them that accused persons were his friends. No documents regarding mobile phone was handed over to him. The mobile was in working condition at the time of recovery. He had not opened the functions of mobile phone. He admitted that accused persons were not medically examined in his presence. He admitted that Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.15 16:19:19 +0530 FIR No. 79/08 State Vs. Mohd. Sameer @ Guddu 6 of 27 PS Anand Parbat mobile number and IMEI number were not mentioned in his statement. He admitted that sketch of mobile was not prepared. In his presence no handing over, taking over memo was prepared. He was not having any knowledge whether it was prepared by IO or not. He admitted that seizure memo Ex.PW3/A was prepared in one go from top to bottom and no alteration was made in his presence. He was not having any knowledge about the seal of DR to whom it was belonging. He denied the suggestion that PCR Van cannot move in the area where the accused persons were apprehended because of heavy traffic and weekly bazar. He denied the suggestion that he was deposing falsely or that nothing was recovered from the possession of accused.
PW4 HC Ashish Kumar. He brought the Duty Roster containing the record dated 09.06.2008 regarding duty of HC Suresh and Const. Kamal Singh which is Ex.PW4/A. PW5 ASI Amar Singh. He deposed that on 09.06.2008, he was posted at PS Anand Parbat as HC. On that day, DD No. 18A was marked to him for investigation. Thereafter, he alongwith Ct. Jotram went Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.15 16:19:25 +0530 FIR No. 79/08 State Vs. Mohd. Sameer @ Guddu 7 of 27 PS Anand Parbat to Taliwala Police Booth, Anand Parbat, where they came to know that the PCR officials had taken the accused persons and the complainant to the PS. Thereafter, he went to PS Anand Parbat along with Ct.
Jotram. He met HC Suresh from PCR, who had produced the complainant Mohd. Sehjad and the accused persons namely Salim and Mohd. Sameer before him and also produced mobile phone make Motorola black and silver color which was recovered from accused persons. Thereafter, he recorded statement of the complainant which is Ex.PW1/D1. Thereafter, he kept the recovered mobile phone on one plain cloth and sealed the same with the seal of DR. Seal after use was handed over to HC Suresh. Thereafter, he prepared the rukka and handed over the same to DO for registration of FIR. After getting FIR registered, he took the copy of FIR and original rukka with him. The case property was deposited in the malkhana. Thereafter, both the accused persons namely Mohd. Sameer and Mohd. Salim were left in the custody of Ct. Ghasi Lal. Thereafter, he along with the complainant went to the spot i.e., near Gumbad Nehru Nagar, Anand Parbat, Delhi and prepared site plan at his instance which is Ex.PW5/A. Thereafter, they Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.15 16:19:32 +0530 FIR No. 79/08 State Vs. Mohd. Sameer @ Guddu 8 of 27 PS Anand Parbat returned back to the PS. Both the accused persons were arrested and personally searched vide memos Ex.P1/C to P1/F. After the medical examination of both the accused persons, they were sent to police custody. Thereafter, they were produced before the Court and from there they were sent to JC. Thereafter, he recorded statement of the complainant. He further deposed that on 26.06.2008, the complainant produced a receipt which is Ex.PW5/B of purchase of mobile phone which was in the name of his father. Later on, both accused persons were released by the Court on bail. Thereafter, he prepared the challan and submitted before the Court.
During cross examination, PW5 deposed that he received this call at the time when he was on another call. They reached at the place from where they got call at about 10:00 A.M. He admitted that accused persons were not apprehended in his presence. He admitted that the recovery was not affected from accused persons in his presence. Vol. Accused were handed over to him by HC Suresh. He had borrowed stamp from his colleague SI Deshraj. He had visited the spot two times. He had inquired from the public persons near the spot. No eye- witness was found except the complainant. He had collected the MLC from the hospital later on. He does Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.15 16:19:39 +0530 FIR No. 79/08 State Vs. Mohd. Sameer @ Guddu 9 of 27 PS Anand Parbat not know who had taken the complainant for his medical examination. No CCTV cameras were found at the spot or nearby the spot. Accused persons were arrested at around 3.00 PM. Information about the arrest of accused persons were given to their relatives. Ct. Kamal Kishore, driver of the PCR vehicle was also examined by him. The receipt which was handed over to him by the complainant with regard to the mobile phone is not got translated into Hindi or English language. He cannot read the language on the receipt given to him by the complainant. He had not examined the father of the complainant. Complainant did not produce any bill except the bill in order to prove his ownership. He denied the suggestion that the case property was not recovered from the accused persons or that accused persons were falsely implicated in the present case.
PW6 SI Vidyakar Pathak. He deposed that on 22.09.2015, accused namely Mohd. Sameer @ Guddu was declared absconder by the Court of Sh. Deepak Dabas, Ld. ACMM. He further deposed that on 27.10.2015 vide DD No. 38A which is Ex.PW6/A an information was received at PS Anand Parbat that Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.15 16:19:45 +0530 FIR No. 79/08 State Vs. Mohd. Sameer @ Guddu 10 of 27 PS Anand Parbat accused Mohd. Sameer @ Guddu was arrested u/s 41.1 (C) CrPC and was sent to judicial custody from the Court. The investigation was marked to him. Thereafter on the next day, he went to Tis Hazari Court and moved an application before the Court for production warrant and an application was also moved with regard to inspection of judicial file. On 02.11.2015, accused Mohd. Sameer @ Guddu was produced before the Court on production warrant. Thereafter, he took permission from the Court to interrogate the accused. After interrogation, accused Mohd. Sameer @ Guddu was formally arrested by me vide arrest memo Ex.PW6/B. He also obtained the certified copy of the order of Ld. ACMM in which accused Mohd. Sameer @ Guddu was declared absconder. He also obtained the certified copy of the statement of HC Anil on whose report accused Mohd. Sameer @ Guddu was declared absconder. Thereafter, he concluded the investigation and submitted the chargesheet before the Court.
During cross examination, PW6 admitted that he does not know what was the case property of the present case. Vol. He was not the main IO. He was marked the further investigation of present case with regard to arrest of accused Mohd. Sameer @ Guddu Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.15 16:19:53 +0530 FIR No. 79/08 State Vs. Mohd. Sameer @ Guddu 11 of 27 PS Anand Parbat only. He does not know the complainant in the present case.
PW7 HC Jot Ram. He deposed that on 09.06.2008, he was posted at PS Anand Parbat as Constable. On that day, DD No. 18A was marked to HC Amar Singh for investigation. Thereafter, he along with HC Amar Singh went to Taliwala Police Booth, Anand Parbat, where they came to know that the PCR officials had taken the accused persons and the complainant to the PS. Thereafter, he went to PS Anand Parbat along with HC Amar Singh. They met HC Suresh from PCR who had produced the complainant and the accused persons namely Salim and Mohd. Sameer, before HC Amar Singh and also produced mobile phone make Motorola black and silver color which was recovered from accused persons. IO prepared seizure memo after registration of FIR which is Ex.PW3/A. Thereafter, IO recorded statement of the complainant. Thereafter, IO kept the recovered mobile phone on one plain cloth and sealed the same with the seal of DR. Thereafter, IO prepared rukka and handed over the same to Duty Officer for registration of FIR. After getting FIR registered, IO took the copy of FIR and original rukka.
SHUBHAM Digitally signed by SHUBHAM DEVADIYA DEVADIYA 16:20:04 +0530 Date: 2022.07.15 FIR No. 79/08 State Vs. Mohd. Sameer @ Guddu 12 of 27 PS Anand Parbat The case property was deposited in the malkhana. Thereafter, IO along with the complainant went to the spot i.e., near Gumbad Nehru Nagar, Anand Parbat, Delhi. Thereafter, he returned back and arrested and personally searched both accused persons.
During cross examination, PW7 deposed that when he reached at the spot, he did not meet any accused or complainant. He admitted that incident did not happen in his presence. He admitted that case property was not recovered from accused persons in his presence. Vol. HC Suresh knows about the case property from whom it was recovered. IO recorded the statement of complainant in the PS. He denied the suggestion that he was not part of the investigation at any point of time.
PW8 SI Suresh. He deposed that on 09.06.2008, he was posted as HC in PCR Unit. He was Incharge of P-5 Van. On that day, he was on duty from 8:00 A.M. to 8:00 P.M. along with Const. Kamal Singh. Const. Kamal Singh also doing duty of driver on that day. On 09.06.2008, they were doing patrolling and going from Taliwali Basti towards Nehru Nagar and at about 9:50 A.M. when they reached near Police Booth Taliwala, Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.15 16:20:11 +0530 FIR No. 79/08 State Vs. Mohd. Sameer @ Guddu 13 of 27 PS Anand Parbat they saw that 02 persons were came running from Nehru Nagar side and one person was behind them and shouting "pakdo pakdo". He along with the help of Const. Kamal Singh apprehended the said 02 persons. In the meantime, the person who was behind them also reached there. On interrogation, the accused persons revealed their names as Saleem and Mohd. Sameer, and one mobile phone was recovered from the hand of accused Saleem. The person who was behind these persons had told me that both accused persons namely Mohd. Sameer and Saleem had snatched his phone. The mobile phone was of Motorola silver and black color. On seeing the gathering of public persons there, he took both accused persons and complainant namely Mohd. Shehjad to PS in the PCR vehicle. Thereafter, he handed over accused persons and mobile phone to the IO. IO recorded statement of complainant. IO also seized mobile phone, by keeping it on one white plain cloth and sealed the same with seal of DR, vide seizure memo Ex.PW3/A. In this regard, IO recorded his statement.
During cross examination, PW8 deposed that the place where the accused persons were apprehended is not thickly populated area but public persons were Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.15 16:20:17 +0530 FIR No. 79/08 State Vs. Mohd. Sameer @ Guddu 14 of 27 PS Anand Parbat passing from that place. Seal after use was handed over to him. Both accused were came running together. Statement of complainant was recorded in PS in his presence. He did not do any personal search of accused. Vol. He found the phone in the hand of accused Saleem. IO recorded his statement later on at the place where the accused persons were apprehended. IO had sealed and seized the case property in his presence. He denied the suggestion that nothing recovered from any accused persons in his presence. He admitted that nothing was recovered from accused Mohd. Sameer.
PW9 HC Vikram Singh. He deposed that on 26.10.2015, he was posted at Special Staff Kamla Market. On that day, he alongwith Const. Mehtab went at Ajmeri Gate in search of proclaimed offenders. There they met secret informer who informed him that one person whose name is Mohd. Sameer @ Guddu @ Hafizul Rehman i.e., accused who is a proclaimed offender of case FIR No. 79/08 PS Anand Parbat and further stated that the said person is living at another place by hiding his identity and further told that he would go towards Jama Masjid via Paharganj and could be apprehended, if raided. Thereafter, he apprised all Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.15 16:20:25 +0530 FIR No. 79/08 State Vs. Mohd. Sameer @ Guddu 15 of 27 PS Anand Parbat the facts to senior officers. Thereafter, he prepared a raiding party, Const. Mehtab and secret informer and took their position at Ajmeri Gate, Kamla Market Bus Stand and started waiting for accused. At about 5:00 P.M. one person i.e., accused Mohd. Sameer @ Guddu @ Hafizul Rehman came from the side of Paharganj and on seeing him, secret informer pointed out towards him and gave signal that he is the same person who is a proclaimed offender of case FIR No. 79/08 PS Anand Parbat. Thereafter, he alongwith Const. Mehtab apprehended the said person and on interrogation he revealed his name as Mohd. Sameer @ Guddu @ Hafizul Rehman. Accused Mohd. Sameer @ Guddu @ Hafizul Rehman further disclosed his present address i.e., Plot No. 195, Phase-I, near Meatwali Gali, Inderlok, Delhi. Thereafter, he called at PS Anand Parbat and got confirmed about the accused from the MHC(R) concerned. Thereafter, accused was arrested u/s 41.1 (c) CrPC. They also took personal search of accused. Information about his arrest was given to his father Hafizullah @ Munna. Accused was arrested and personal searched vide memos Ex.PW9/A and Ex.PW9/B. Thereafter, he prepared a Kalandra u/s 41.1 (c) CrPC is Ex.PW9/C. He made DD entry No. 19 Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.15 16:20:31 +0530 FIR No. 79/08 State Vs. Mohd. Sameer @ Guddu 16 of 27 PS Anand Parbat which is Ex.PW9/D. Thereafter, on the next day, accused was produced before the concerned Duty MM and from there he was sent to judicial custody.
During cross examination, PW9 deposed that he had made DD No. 11 dated 26.10.2015 before leaving their office. The accused was arrested at around 5:45 P.M. Accused was alone at the time of his arrest. Accused did not try to run from the spot. Police officials of PS Anand Parbat were informed at about 9:00 P.M.
5. No other PW was examined by prosecution. Thereafter, statement of accused u/s 313 CrPC was recorded on 06.04.2022. Accused denied all the allegations against him. He stated that he has been falsely implicated in the present case. Accused opted not to lead defence evidence.
6. This Court has carefully perused the case record and have heard arguments advanced by Ld. APP for the State as well as by Ld. Defence Counsel. Ld. APP for state has argued that eye witness/victim has supported the prosecution and his testimony has remained unrebutted. That the testimonies of all the prosecution witnesses have been consistent and that on a combined reading of the same the offences u/s 392/34 and 174A IPC are proved beyond reasonable doubt. Per contra, Ld. Defence Counsel submitted that prosecution failed to prove the charges against Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.15 16:20:37 +0530 FIR No. 79/08 State Vs. Mohd. Sameer @ Guddu 17 of 27 PS Anand Parbat accused. He submitted that no independent witness was examined by prosecution to prove the allegation against accused. He further submitted that testimony of complainant is not reliable and trustworthy as complainant is an interested witness and he has falsely implicated accused due to some previous quarrel. He further submitted that accused Sameer had not snatched the mobile of the complainant and the same is admitted by the complainant in his cross examination. He then submitted that the accused Sameer was merely standing at the place of incident and he did not commit any offence as alleged against him. He submitted that no recovery has been affected from the possession of the accused Sameer and the prosecution has therefore not been able to prove the case against him and the accused Sameer deserves acquittal from the present case.
ANALYSIS , APPRECIATION OF EVIDENCE AND FINDING
7. Before proceeding with the appreciation of evidences, it is imperative to refer the definition of the offences charged against the accused persons. For better understanding section 392/34 and 174A IPC are reproduced as follow:
390. Robbery. - In all robbery there is either theft or extortion.
When theft is robbery. - Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.15 16:20:45 +0530 FIR No. 79/08 State Vs. Mohd. Sameer @ Guddu 18 of 27 PS Anand Parbat wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
34. Acts done by several persons in furtherance of common intention. When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone 174A. Non-appearance in response to a proclamation under section 82 of Act 2 of 1974.
Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.
8. In a criminal case, prosecution is required to prove the case beyond reasonable doubt. Punishment of an accused person on the basis of suspicion alone has been held to be not permissible. Suspicion cannot give probative value to testimony which in itself is insufficient to establish or justify an inference of a particular fact. It is a settled proposition of criminal law that prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence which inspires confidence into the story of the prosecution. In order to prove its case, prosecution is supposed to stand on its own legs and it cannot drive any benefit, whatsoever, from the weakness, if any, in the defense of the accused. The burden of proof of the version of the Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.15 16:20:52 +0530 FIR No. 79/08 State Vs. Mohd. Sameer @ Guddu 19 of 27 PS Anand Parbat prosecution in a criminal trial throughout the trial is on the prosecution and its never shifts to the accused and the accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubts entitles the accused to acquittal.
9. In order to bring charge under the section 392/34 IPC, the prosecution was supposed to bring home the following ingredients-:
When the offender voluntarily causes or attempts to cause:
o Death, wrongful restraint or hurt; or o Fear of instant death, instant wrongful restraint or instant hurt.
And the above act(s) is done-:
o In order of committing the theft;
o While committing theft;
o While carrying away the property obtained by theft; or o While attempting to carry away property obtained by theft.
In addition to the above ingredients, the prosecution had to prove that the accused persons committed the offence of robbery in furtherance of common intention of each other.Digitally signed by
SHUBHAM SHUBHAM DEVADIYA
DEVADIYA Date: 2022.07.15
16:20:58 +0530
FIR No. 79/08 State Vs. Mohd. Sameer @ Guddu 20 of 27
PS Anand Parbat
10. In the case in hand, PW1 has categorically stated in his examination in chief, that the accused persons namely Saleem and Mohd. Sameer took his phone from him on the pretext of calling someone, and then the accused persons, as deposed by the complainant, refused to return the said phone of the complainant and started moving away. On this the complainant started shouting "chor-chor", upon which the PCR van which was already present at the spot, stopped those persons and the said accused persons were apprehended on the basis of grievance of the complainant.
He correctly identified the accused Mohd. Sameer who was present in the court. The witness was duly examined and cross examined and was discharged.
11. The testimony of the complainant appears to be different from that of his complaint, as the complainant in his complaint Ex-PW1/D1 had stated that the one person namely Sameer had caught hold of him from his back side and another person namely Saleem had snatched his phone from him and then they both ran away and were apprehended by the PCR van upon his shouting of "pakdo-pakdo". No efforts were made by the prosecution to explain the above discussed inconsistency.
12. Further, the perusal of the said complaint reveals that the complainant states that he got to know the name of the accused persons after they were apprehended by the police officials of PCR van. The perusal of examination in chief of PW1 also reveals the same fact wherein the complainant has stated that he got to know the name of the accused persons after they were apprehended. This much has been categorically Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.15 16:21:06 +0530 FIR No. 79/08 State Vs. Mohd. Sameer @ Guddu 21 of 27 PS Anand Parbat deposed by the complainant. However, the complainant during his cross examination admitted that the accused Mohd. Sameer was known to him, but he denied that any quarrel had taken place before the incident with the accused persons and therefore, he had implicated the said accused persons.
The collective reading of the complaint as well as the examination in chief of the complainant provides two version of the prosecution story. No efforts were made by the prosecution to explain the above discussed inconsistency. The testimony of the complainant appears to be inconsistent and unreliable as he has not been able to corroborate the story of the prosecution in a clear and specific manner. Moreover, contention of defence that the complainant has falsely implicated the accused persons as they all had a quarrel before the alleged incident cannot be ruled out, because, as per the above discussed testimony of the complainant, the complainant has admitted that the accused Mohd. Sameer was known to him, and if he did actually know him then this court fails to understand as to why did he stated that he got to know the name of the accused persons after they were apprehended, therefore, the contention of defence qua false implication cannot be totally ruled out and it raises suspicion in the story of prosecution and the same has not been explained by the prosecution. In view of the above discussion, the testimony of the complainant cannot be relied as the same has not been properly corroborated and it raises suspicion in the prosecution story, the benefit of which has to be given to the accused persons.
Digitally signed by SHUBHAM SHUBHAM
DEVADIYA
DEVADIYA Date: 2022.07.15
16:21:14 +0530
FIR No. 79/08 State Vs. Mohd. Sameer @ Guddu 22 of 27
PS Anand Parbat
13. Thereafter, the prosecution examined PW/2, PW/2, PW/3, PW/4, PW/5, PW/7, PW/8 to support the case against the accused Saleem and Mohd. Sameer u/s 392/34 IPC. They all are police officials and have corroborated the version of the prosecution. They were examined, cross examined and discharged.
The testimony of all the abovesaid PWs is not sufficient enough to support the case of the prosecution as the primary witness i.e. PW1 / complainant Mohd. Shehzad has failed to corroborate the version of the prosecution in a clear and cogent manner and, therefore, casts a serious doubt about the reliability of his testimony.
14. PW/1, PW/3 PW/7and PW/8 are the recovery witnesses, the same is reflected from the seizure memo which is EX-PW/3. PW/3 and PW/8 were on PCR patrolling duty on the alleged date and time and their testimony is important to prove the recovery of case property. PW/3 Ct kamal has stated that upon the noise of "pakdo-pakdo" by the complainant, he along with PW/8 HC Suresh apprehended the accused persons and the case property (mobile phone) was recovered from the casual search of Mohd. Sameer. The said witness, however, in his cross examination admitted that nothing was recovered from the possession of accused Mohd. Sameer. PW/8 HC Suresh categorically deposed that the said mobile phone was recovered from the possession of accused Saleem (since expired). Both the witnesses were duly examined, cross examined and were discharged. It is clear from the testimony of the above witnesses, who were the next natural witnesses after the complainant, that the recovery of the case property was not Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.15 16:21:21 +0530 FIR No. 79/08 State Vs. Mohd. Sameer @ Guddu 23 of 27 PS Anand Parbat effected from the possession of the accused Mohd. Sameer. The above witness too have been inconsistent in their testimony and no efforts were made by the prosecution to explain the same.
15. In the instant case, the prosecution was supposed to prove that the accused persons, in active participation, had wrongfully restrained the complainant in order to commit the theft of his property i.e., mobile phone, so as to bring the guilt of accused persons u/s 392/34 IPC. However, the eye witness/complainant in the case has not been able to corroborate the version of the prosecution and has given unreliable testimony. The same has been rebutted by the defence to the level of creating suspicion in the story of persecution, therefore, the testimony of the complainant cannot be relied. As far as the testimony of other prosecution witnesses is concerned, it has already been discussed that those witnesses are formal witnesses and their testimony is not sufficient enough to support the case of the prosecution and since the natural witnesses among them namely PW/3 and PW/8 have not deposed consistently qua the recovery of the case property from the accused Mohd. Sameer, therefore, their testimony too becomes unreliable. The prosecution, apart from the presence of accused persons, has not been able to prove any conduct of the accused persons which could have shown that they were acting in connivance of each other and were actively participating in furtherance of their common intention to commit the aforesaid crime. Rest of the prosecution witnesses testimony alone, in my opinion, is not sufficient enough to sustain the charges u/s 392/34 IPC against the accused persons namely Saleem and Mohd. Sameer. Therefore, Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.15 16:21:29 +0530 FIR No. 79/08 State Vs. Mohd. Sameer @ Guddu 24 of 27 PS Anand Parbat for the reasons mentioned above, the accused Saleem (since expired) and Mohd. Sameer stands acquitted of charges u/s 392/34 IPC.
16. During the course of proceedings the accused Mohd. Sameer was declared proclaimed offender. It is pertinent to mention that the case record is suggestive of the fact that pursuant to execution of proclamation u/s 82 CrPC the accused was declared as proclaimed person on 22.09.2015 and despite said proclamation, he failed to appear before this court in the proceedings of the case. The offence u/s 174A IPC lays down for the punishment for failure on the part of a person to appear at a specified place and time as required by proclamation published u/s 82 (1) CrPC. This provision by necessary implication rules out the existence of any mens-rea on the part of the accused and the actus of accused i.e. his failure to appear at a specified place and time as required by proclamation u/s 82 (1) CrPC is in itself an act indictable under the said provision which entails the penal consequences. It is an admitted fact that pursuant to due publication and execution u/s 82 CrPC, accused failed to appear before the Court within the specified period of 30 days and was declared as a proclaimed offender vide order dated 22.09.2015. The accused has not disputed this fact and in his statement u/s 313 CrPC the accused has stated that the said order of proclamation is a matter of record. The accused, apart from denying the said order of proclamation against him, has not offered any probable explanation as to why he failed to appear even after the execution of the proclamation u/s 82 (1) CrPC against him nor any contention has been raised by the ld. Counsel for the accused.
Digitally signed by SHUBHAM SHUBHAM DEVADIYA
DEVADIYA Date: 2022.07.15
16:21:34 +0530
FIR No. 79/08 State Vs. Mohd. Sameer @ Guddu 25 of 27
PS Anand Parbat
17. As far as the offence u/s 174A IPC is concerned, the testimonies of PW6 and PW9 becomes relevant in that context. The prosecution examined PW/6 and PW/9 to bring home the case against accused under section 174A IPC against accused Mohd. Sameer. PW/9 had deposed that on 26.10.2015 he got secret information regarding PO Mohd. Sameer and thereafter, he along with Ct. Mehtab apprehended the accused Mohd. Sameer vide Kalandra u/s 41.1(c) EX.PW9/C and thereafter arrested accused / PO Mohd. Sameer and intimated the police officials at PS Anand Parbat. The prosecution then examined PW/6 SI Vidyakar Pathak who deposed that vide DD No. 38A Ex.PW6/A an information was received at PS Anand Parbat that accused Mohd. Sameer @ Guddu has been arrested. The said PW deposed that he moved appropriate application before the concerned court and again arrested the accused in the present case vide arrest memo Ex.PW6/B and then filed the supplementary chargesheet qua offence u/s 174A IPC against accused Mohd. Sameer. The above discussed witnesses were duly examined, cross examined and discharged.
18. The Ld. APP argued that the prosecution has been able to prove the offence of 174A IPC against accused Mohd. Sameer. The ld. Defence counsel argued that the accused did not deliberately avoid the processes of this court and he was not duly served with the notices of the court and therefore, allegation qua offence u/s 174A are not made out against the accused. when the testimony of PW/6 was out to the accused in his section 313 statement he stated that "it is a matter of record". When the testimony of PW/9 HC Vikram was put to the accused he stated that "it is incorrect".
Digitally signed by SHUBHAM SHUBHAM DEVADIYA
DEVADIYA Date: 2022.07.15
16:21:41 +0530
FIR No. 79/08 State Vs. Mohd. Sameer @ Guddu 26 of 27
PS Anand Parbat
The accused had merely denied the incriminating evidences put to him and has not stated anything beyond that. Therefore, no further defence was put by the accused Mohd. Sameer to defend the charge u/s 174A IPC. Both the parties were heard.
19. In my opinion the prosecution has been able to prove the offence u/s 174A against the accused Mohd. Sameer. As far as the argument of ld. Defence counsel is concerned, the same is not sustainable as the section 82 crpc declares the order of proclamation as a conclusive piece of evidence and therefore, once an accused is declared proclaimed offender the process issued against him is presumed to have been duly executed.
20. Thus, in view of aforesaid discussion, I am of the opinion that prosecution has been able to prove its case u/s 174A IPC and therefore, the accused Mohd Sameer stands convicted of offence u/s 174A IPC.
21. To sum up the final order the accused stands acquitted u/s 392 r/w Section 34 IPC. The accused stands convicted u/s 174A IPC.
22. Copy be provided free of cost.
Digitally signed by SHUBHAM SHUBHAM
DEVADIYA
DEVADIYA Date: 2022.07.15
16:21:47 +0530
Announced in open Court (Shubham Devadiya)
on 15th day of July, 2022 Metropolitan Magistrate
West-05, Delhi
FIR No. 79/08 State Vs. Mohd. Sameer @ Guddu 27 of 27
PS Anand Parbat