Delhi District Court
State vs . on 4 December, 2019
IN THE COURT OF SH. ASHUTOSH KUMAR, ADDITIONAL SESSIONS
JUDGE04 (NORTH), ROHINI COURTS, DELHI
Session Case No. 59216/2016
CNR No. DLNT010097822016
State Vs.
1) Md. Zishan @ Chand @ Shahid
S/o Sh. Md. Latif
R/o B1438, Jahangir Puri,
Delhi.
2) Shahrukh
S/o Sh. Mehraj Qureshi
R/o B1417, Jahangir Puri,
Delhi.
FIR No. : 194/2016
Police Station: Bhalswa Dairy
Under Sections: 392/397/120B/427/34 IPC
& u/s 25/27 Arms Act
Date of committal to Sessions Court : 22/08/2016
Date of institution : 26/08/2016
Date of Argument : 04/12/2019
Date of Judgment : 04/12/2019
JUDGMENT
1. Briefly stated, case of the prosecution is that on 29/03/2016, at 15:07 p.m., DD no. 22A was recorded at PS Bhalswa Dairy regarding robbery of Rs. 3 lakhs by three unknown boys on the point of pistol, who were riding on a bike, at M.Pur Shukla Colony, 'Jheel' Road Gupta Material.
SC No. 59216/2016 FIR no. 194/2016 PSBhalswa Dairy State Vs Md. Zishan @ Chand @ Shahid & Anr. Page 1 of 14The contents of the said DD were telephonically conveyed to SI Pradeep for taking necessary action. Accordingly SI Pradeep along with Ct Devender reached at the scene of crime i.e. near Gupta building material, Shukla Colony, Dblock, Mukundpur, Delhi, where complainant Devender s/o Ramashish met them and SI Pradeep recorded his statement.
2. In his statement, Devender stated that he is running a property dealing office under the name & style 'Jai Bala Ji Properties' at Khasra No. 316317, D Block, Guru Nanak Dev Colony, Bhalswa Dairy, Delhi. He further stated that about 2½ months before, he entered into an agreement to sell with regard to selling of his one plot situated at Khasra No. 627, Village Bhalswa Dairy, Delhi, measuring 27 square yards for a sum of Rs. 5 lakhs through one Dalip and Deepak, out of which, Rs. 1.5 lakhs were received by him as 'bayana' and it was decided that remaining payment will be made after execution of documents. He further stated on 29/03/2016, as per instructions of Deepak and Dalip, he executed the documents in the name of the party and Dalip told him to collect the remaining payment from his house situated at Jahangir Puri and thereafter Dalip went away along with the party and he (Devender) himself along with Deepak went to Swaroop Nagar in connection with some work. He further stated at about 1.00/1.30 p.m., he along with Deepak reached at the house of Dalip, who handed over the balance payment of Rs. 3.5 lakhs to him. He further stated that he kept the said amount in the dickey of his motorcycle and left for his office alone from there. He further stated that at about 2.30 p.m., when he reached at 'Shukla' SC No. 59216/2016 FIR no. 194/2016 PSBhalswa Dairy State Vs Md. Zishan @ Chand @ Shahid & Anr. Page 2 of 14 Colony, Dblock, Mukundpur, Delhi, via Jheel Road, Bhalswa Dairy and was on RCC road, then just ahead of Gupta Material shop, three boys, aged about 2025 years, thin built, came on a motorcycle of red and white colour, make Yamaha FZ, backside number plate of which was missing and the front number plate was in broken condition and hit his motorcycle from behind with their motorcycle, as a result of which his motorcycle fell down and a part of the mudguard of the motorcycle of those boys also fell down there, which was of red colour and the clutch lever of the said motorcycle also broke down and a small piece thereof also fell down. He further stated that thereafter the boy who was riding the said motorcycle, took out one pistol which he was hiding and pointed out the same towards him and his two associates, out of which, one was holding a screw driver in his hand and the other was also having a pistol in his hand, had rushed towards the dickey of his fallen motorcycle and they both opened the dickey with the help of screw driver and leg blows and took out Rs. 3.5 lakh from the dickey and ran towards Jheel wala Road while riding on their said motorcycle. He further stated that he can identify those three boys, if shown to him.
3. After recording of his statement, complainant Devender also produced his motorcycle no. DL1SX5455 of grey and blue colour, make Hero, right side dickey of which was broken but was attached to the bike, piece of mudguard of red colour and piece of clutch lever of the motorcycle of the assailants used in the commission of the offence, before SI Pradeep Kumar, who clicked the photographs of the broken dickey with his mobile SC No. 59216/2016 FIR no. 194/2016 PSBhalswa Dairy State Vs Md. Zishan @ Chand @ Shahid & Anr. Page 3 of 14 phone.
4. On the basis of aforesaid statement and circumstances, offences u/s 392/397/34 IPC were found to be committed. Accordingly SI Pradeep prepared a tehrir and handed over the same to Ct Devender for getting the case FIR registered. Accordingly FIR of the present case was recorded u/s 392/397/34 IPC.
5. After registration of case, aforesaid broken piece of mudguard and clutch lever of motorcycle were taken into police possession through seizure memo. Damaged dickey of the motorcycle of complainant was also taken into police possession vide a seizure memo. Site plan of the place of occurrence was prepared at the instance of complainant. Statements of witnesses were recorded. On the basis of description of bike used by robbers, investigation was takenup and inquiries were made in the area of Jahangirpuri from where complainant had left after taking the payment. During investigation, it was found that a person namely Chand (A1 herein), R/o B1438, Jahangirpur used to have same type of bike as was used by robbers. He was searched at his home, but was not found. Inquiries were also made from his family members qua the motorcycle and Chand but they could not reply satisfactorily. Secret informers were deployed to know about the whereabouts of accused Chand @ Zishan. Other police officials of PS Bhalswa were also instructed to gather information about Chand. Meanwhile an anticipatory bail application was filed on behalf of accused Zishan on SC No. 59216/2016 FIR no. 194/2016 PSBhalswa Dairy State Vs Md. Zishan @ Chand @ Shahid & Anr. Page 4 of 14 13/05/2016, which was dismissed by Hon'ble Sessions Court on 14/05/2016. Efforts were being made to apprehend the accused Chand, but he kept absconding from his house.
6. On 30.05.2016, an application for surrender was filed before Hon'ble Court on behalf of accused Chand and Shahrukh (A1 & A2 respectively) which was fixed for 01/06/2016. On the basis of secret information, both the accused were apprehended by the police on 31/05/2016 when they were trying to escape from Delhi. They were interrogated, arrested & searched. Their disclosure statements were recorded. Accused Zishan @ Chand (A1) had disclosed that coaccused Shahrukh conspired with him to commit the robbery and that he (Zishan) got joined two other associates namely Rafikul and Chhotu joined to commit the robbery. Accused Shahrukh (A2) disclosed about involvement of Deepak (who was the mastermind behind the conspiracy) who was to give information regarding receiving of payment by the complainant. Both the accused further disclosed about distribution of the robbed amount and that they spent their share of the robbed amount on shopping and accused Shahrukh got recovered one pair of shoes which were purchased by him with the robbed amount. The motorcycle used in the commission of offences was recovered at the instance of accused Shahrukh (A2). Its mudguard and clutch lever were found broken. The same was seized. Accused Chand @ Zishan (A1) also pointed out the place of occurrence. Accused Chand refused to participate in TIP but later on was identified by SC No. 59216/2016 FIR no. 194/2016 PSBhalswa Dairy State Vs Md. Zishan @ Chand @ Shahid & Anr. Page 5 of 14 complainant in the Court. Deepak (associate of accused persons) was found absconding from his house since the day of arrest of accused Chand and Shahrukh. Addresses of aforesaid two associates were not traceable. Section 427/120B IPC and u/s 25/27 Arms Act were added during investigation. Supplementary disclosure statements of both the accused were also recorded on 02/06/2016. Broken piece of mudguard and clutch lever produced by the complainant on the date of incident, were sent to FSL. Call detail records of mobile nos. 9810335434 & 9136534434 (of Deepak), 9821152258 (of accused Zishan @ Chand), 9711580973 (of accused Shahrukh) revealed that they were in regular contact with each other on the date of incident. Certified call detail record of these mobile numbers were obtained except of mobile no. 9711580973 due to some unavoidable reasons.
7. On completion of investigation, chargesheet u/s 392/397/120B/427/34 IPC & u/s 25/27 Arms Act was filed against accused Md. Zishan @ Chand @ Shahid (A1) and Shahrukh (A2) before the concerned Magisterial Court on 31/07/2016, which was committed to the Court of Sessions on 22/08/2016 and was received on assignment by this Court on 26/08/2016.
8. Vide order dated 08/09/2016, charge for the offences u/s 395 r/w Section 120B IPC & u/s 397 r/w section 120B IPC was framed against accused Md. Zishan @ Chand @ Shahid (A1), whereas charge for the SC No. 59216/2016 FIR no. 194/2016 PSBhalswa Dairy State Vs Md. Zishan @ Chand @ Shahid & Anr. Page 6 of 14 offence u/s 120B IPC was framed against accused Shahrukh (A2), to which both the accused persons pleaded not guilty and claimed trial.
9. In order to prove its case, the prosecution had examined PW1 ASI Amrit Lal, duty officer (who proved his endorsement Ex. PW1/A on rukka, copy of FIR Ex. PW1/B and his certificate u/s 65B of Indian Evidence Act Ex. PW1/C), PW2 Mohit Chopra (who proved the factum of giving his SIM no. 9136534434 to Deepak (since not arrested), PW3 HC Devender (who proved the factum of producing of mudguard and clutch lever of motorcycle of red and white make FZ Yamaha used by the accused, by complainant Devender before IO SI Pradeep, preparing of rukka by IO, on the basis of which he got registered the FIR of the present case), PW4 Sadakhat Hussain (who proved that mobile no. 9136534434 & 9810335435 were saved in his mobile no. 8800329786 by the name of Deepak) and PW5 Devender Kumar (complainant/victim) till 21/02/2019. However, PW5 complainant Devender Kumar (complainant/victim & sole eyewitness to the incident), had turned hostile and did not support the case of the prosecution qua identity of accused accused Shahrukh (A2) as the one who was involved in the conspiracy to commit the robbery in question and that of accused Md. Zishan @ Chand @ Shahid (A1) as the one who pursuant to said conspiracy, had snatched the money of the complainant on the point of pistol along with his two associates Rafikul and Chhotu and further, did not identify the recovered motorcycle allegedly used in the commission of offence.
SC No. 59216/2016 FIR no. 194/2016 PSBhalswa Dairy State Vs Md. Zishan @ Chand @ Shahid & Anr. Page 7 of 1410. Since after the examination of complainant PW5 Devender Kumar, no incriminating evidence had come on record against both the accused persons qua commission of offences,therefore prosecution evidence was closed since continuing further with the trial would have been an exercise in futility as even if the remaining prosecution witnesses were permitted to be examined, their proposed testimony and remaining case of the prosecution is taken on face value, there was not even a remote possibility of conviction of both the accused since the sole eyewitness to the incident i.e. PW5 Devender Kumar had turned hostile and did not depose anything incriminating against them. There was no other proposed circumstantial evidence which could have proved the identity of both the accused persons as the ones who after hatching a conspiracy, took away the money from the motorcycle of the complainant while pointing pistol at him.
11. Since no incriminating evidence had come on record against both the accused persons, therefore recording of their statements u/s 313 Cr.P.C. was dispensed with.
12. I have heard ld. Officiating Chief PP for the State, ld. Counsel for both the accused persons and have carefully gone through the material available on record.
13. Complainant PW5 Devender Kumar has deposed that he is a SC No. 59216/2016 FIR no. 194/2016 PSBhalswa Dairy State Vs Md. Zishan @ Chand @ Shahid & Anr. Page 8 of 14 property dealer by profession and his office is situated at Guru Nanak Dev Colony in Bhalswa Dairy. He further deposed that in the year 2016, he was having a plot in JJ Colony, Khasra no. 627, measuring area 27 square feet, Bhalswa Dairy, which was sold by him to one person through property agent Deepak and Dilip and was to pay 1% to Deepak and Dilip from the consideration amount of Rs. 5.5 lakhs. He further deposed that purchaser of aforesaid plot had given Rs. 1.5 lac as earnest money to him and rest of the amount was to be given at the time of execution of registry of the aforesaid plot. PW5 further deposed that on 29/03/2016, he executed registry of the aforesaid plot in the name of purchaser and after execution of registry, he along with Deepak and Dilip reached at the house of purchaser situated in the area of Jahangir Puri to collect rest of the amount from him. He further deposed that accordingly he collected Rs. 3.5 lacs from the purchaser of his plot and wrapped currency notes of the denomination of Rs. 100/, Rs. 500/ and Rs. 1,000/ in a polythene and kept the same in the dickey of his motorcycle. He further deposed that thereafter he started returning towards his office and on the way at about 2/2.30 p.m., when he reached near Gupta Building Material, RCC Road,Shukla Colony, suddenly three boys came on a bike from his behind and hit against his motorcycle. He further deposed that due to impact of said hitting, he along with his bike fell down on the road and culprits also fell down on the road along with bike. He further deposed that thereafter, out of three culprits, one culprit/snatcher started opening dickey of his motorcycle with the help of screw driver and remaining two snatchers overpowered him at the point of gun. PW5 further deposed that thereafter SC No. 59216/2016 FIR no. 194/2016 PSBhalswa Dairy State Vs Md. Zishan @ Chand @ Shahid & Anr. Page 9 of 14 all the three accused persons robbed aforesaid amount and fled away towards jheel side on aforesaid motorcycle on which they came there. He further deposed that during the incident when accused persons hit against his motorcycle, the lever and front mudguard of the motorcycle of snatchers got broken. He further deposed that he made call at 100 number through his mobile phone and accordingly PCR police van came at the spot along with police officials of local police station. He further deposed that police officials made enquiry from him and recorded his statement Ex. PW5/A and also seized the piece of mudguard and clutch lever vide seizure memo Ex. PW5/B. He has identified his signature on the said memo at point A. He further deposed that he noticed snatchers had used motorcycle make Yamaha, front side number plate of which was broken and was not having number plate in rear side. PW5 further deposed that police officials also seized broken dickey of his motorcycle vide seizure memo Ex. PW5/C and that he had shown the place of incident to the police officials. He also deposed that accused persons present in the Court were not those snatchers. He further deposed that on 03/06/2016, he went to PS Bhalswa Dairy to know about the progress of his case where he saw the motorcycle which was used by snatchers in the commission of offence and identified the same. He further deposed that he saw said motorcycle make of Yamaha lever and front side mudguard of which were broken. Since PW5 Devender resiled, the then ld. Addl. PP for the State had sought permission to cross examine him and during his said crossexamination PW5 has admitted that on 02/07/2016, he went to Rohini Court in court no. 213, where SI Pradeep SC No. 59216/2016 FIR no. 194/2016 PSBhalswa Dairy State Vs Md. Zishan @ Chand @ Shahid & Anr. Page 10 of 14 (IO of this case) met him outside the court room. However he has denied the suggestion that he had seen both the accused persons present in Court (who were in the custody of SI Pradeep) and had identified them as the same persons who had snatched his money. He has further denied the suggestion that SI Pradeep told him the names of accused persons as Zishan Ali and Shahrukh. He further denied the suggestion that he was not identifying both the accused persons deliberately being won over by them. During his said crossexamination, PW5 Devender had identified the part of mudguard Ex. P1 of the motorcycle make Yamaha as the one which had broken after the said motorcycle hit his motorcycle, its cover & part of clutch Ex. P2 collectively & dickey of his motorcycle Ex. P3 as the one which was forcefully opened by the snatchers with the help of screw driver in order to rob his money and had broken due to hitting by the motorcycle of robbers from behind. During crossexamination of PW5 by the then ld. Addl. PP for the State, the motorcycle no. DL8SBR2103 make Yamaha FZ of red and white colour was produced by accused Zishan (A1) which was taken by him on superdari, and was shown to PW5 but he failed to identify the same as the one on which the offenders had come. He has denied the suggestion that he was deliberately not identifying the said motorcycle being won over by the accused persons.
13.1. PW5 Devender was also crossexamined by ld. Counsel for both the accused persons, during which, he had deposed that neither he can identify the accused persons nor the motorcycle. He had admitted that there SC No. 59216/2016 FIR no. 194/2016 PSBhalswa Dairy State Vs Md. Zishan @ Chand @ Shahid & Anr. Page 11 of 14 was no specific identification mark on the broken piece of mudguard and that such type of mudguard were available in the market.
14. Thus from the aforesaid statement of PW5 complainant Devender, it is evident that he did not support the case of prosecution regarding the identity of both the accused persons as the ones who were involved in the robbery in question. It is admitted case of prosecution that coaccused Deepak who was the mastermind behind the conspiracy to commit the offence of robbery & other two associates Rafikul and Chhotu who were also joined to commit the offences in question, could not be traced out and could not be arrested during investigation. Even if for argument sake the rest of the prosecution case is taken on face value, there is no probability of conviction of accused persons since the sole eyewitness to the incident has failed to identify both the accused person as the snatchers who robbed his money on the day of the alleged incident. Hence the prosecution has failed to prove its case that accused Shahrukh (A2) had entered into a criminal conspiracy with accused Md. Zishan @ Chand @ Shahid (A1) & Deepak, Rafikul and Chhotu (since not arrested) to rob the money of PW5 Devender. The prosecution has also failed to prove that pursuant to conspiracy, accused Md. Zishan @ Chand @ Shahid (A2) along with his coconspirators Rafikul and Chhotu robbed Rs. 3,50,000/ of complainant PW5 Devender, which were kept in the dickey of his motorcycle or that he used a deadly weapon i.e. pistol while robbing PW5 Devender along with his aforesaid associates Rafikul and Chhotu (since not arrested).
SC No. 59216/2016 FIR no. 194/2016 PSBhalswa Dairy State Vs Md. Zishan @ Chand @ Shahid & Anr. Page 12 of 14It is admitted case of the prosecution that no recovery of any pistol was effected from accused Md. Zishan @ Chand @ Shahid or at his instance. Even the motorcycle which the prosecution has claimed to be allegedly used in the commission of offence, was not identified by the PW5 Devender before the Court on being produced by accused Zishan @ Chand @ Shahid during evidence. PW5 has specifically deposed that both the accused present in the Court were not the snatchers and even during his cross examination by the then ld. Addl. PP for the State he denied that on 02/07/2016, he went to Rohini Court in court room no. 213 or on that day both the accused persons ( in custody of SI Pradeep) were identified by him as the ones who had snatched his money. He further denied that SI Pradeep told him the names of said accused persons as Zishan Ali and Shahrukh. Moreover during his testimony before the Court, PW5 Devender has deposed about the denomination of currency notes which were wrapped by him in a polythene and kept in the dickey of his motorcycle, but in his initial statement dated 29/03/2016, whereupon FIR of the present case was registered, he nowhere stated about the denomination of currency notes and merely stated that he kept the money in the dickey of his motorcycle. In his deposition before the Court, PW5 claimed that one culprit/snatcher started opening dickey of his motorcycle with the help of screw driver and remaining two snatchers overpowered him at the point of gun, whereas in his initial statement, he nowhere claimed that he was overpowered by remaining two snatchers at the point of gun, rather it is mentioned that one of the robber pointed a gun towards him and the two other associates, out of which, one SC No. 59216/2016 FIR no. 194/2016 PSBhalswa Dairy State Vs Md. Zishan @ Chand @ Shahid & Anr. Page 13 of 14 was holding a screw driver and the other who was also holding a pistol, rushed towards his motorcycle and opened the dickey of the motorcycle with the help of screw driver and leg blows. It is also admitted case of the prosecution that no recovery of robbed money could be effected from the possession or at the instance of both the accused persons.
15. Thus from the aforesaid discussion, it is clear that the testimony of PW5 complainant Devender does not incriminate both the accused persons. The testimony of other PWs examined is formal in nature. There is no other proposed material eyewitnesses or circumstantial evidence on the basis of which both the accused persons can be held guilty.
16. From the aforesaid discussion, I am of the considered opinion that there is no material on record against both the accused persons to held them responsible for the alleged offences. Therefore, accused Md. Zishan @ Chand @ Shahid is acquitted for the offences u/s 395/397 read with Section 120B IPC, whereas accused Shahrukh (A2) is acquitted for the offence u/s 120B IPC.
17. Both the accused are directed to furnish personal bond in the sum of Rs.25,000/ with one surety each in the like amount in compliance of Section 437A Cr.P.C. Digitally signed by ASHUTOSH ASHUTOSH KUMAR Announced in the Open Court KUMAR Date: 2019.12.04 (Ashutosh Kumar) 17:03:05 +0530 On 04/12/2019 Addl. Sessions Judge: 04 (North) Rohini Courts: Delhi SC No. 59216/2016 FIR no. 194/2016 PSBhalswa Dairy State Vs Md. Zishan @ Chand @ Shahid & Anr. Page 14 of 14