Delhi District Court
State vs Khursheed @ Khurshid on 19 March, 2008
1
IN THE COURT OF SH. S.C. MALIK, ADDL. SESSIONS JUDGE.;
KARKARDOOMA COURTS: DELHI
S.C. No: 94/07
State Versus Khursheed @ Khurshid
son of Wakeel Ahmed
R/o C 397,
New Sanjay Amar Colony,
Anand Vihar, Delhi.
FIR No: 388/2007
P.S.: Shakarpur
U/s. 392/397/506/411/34 IPC
JUDGMENT
1. Succinctly, the case of the prosecution, as revealed from the report under section173 CrPC is that on 17.05.2007 on receipt of DD no.: 52 B SI Bhanu Pratap alongwith Constable Karan reached the spot near Service Road opposite Lovely Public School,(LPS), Delhi, where Manish Sharma son of O.P. Sharma met them. Complainant Manish Sharma got his 19.03.08 2 statement recorded wherein he interalia stated that on that date at about 3 p.m. while he reached L.P.S., he was stopped by two persons and they snatched his mobile phone, his purse containing cash amount of Rs. 5,000/- with two gold rings and driving licence. The complainant also stated that those assailants also threatened to kill them and that he could identify the culprits. On his statement, a case under sections 392/397/34 IPC was registered. Investigations continued. Ultimately accused - Khursid was arrested in another case by Special Staff of Delhi Police and on his disclosure statement he was found involved in this case also. Thereafter the present accused was formally arrested in this case too and recovery of part of the robbed articles was also effected from him and during his police remand accused Khursid also got recovered one knife. After investigations, the accused was charge sheeted by sending him to the court to face trial.
2. Since major offence in this case was triable exclusively by Court of Sessions, the concerned M.M. committed the case to the Court of Sessions which on allocation, had been assigned to this Court.
19.03.08 3
3. After hearing Sh, B.S. Kail, ld. Addl. P.P. for the State, ld. defence counsel and on perusal of the judicial file, this court framed charges against accused - Khursid for offence punishable under sections 392/394 read with 397/34 IPC and also framed separate charge against him for offence punishable under section 411 IPC. The accused pleaded not guilty to the respective charges framed against him, claimed trial and consequently trial against the accused proceeded with.
4. Prosecution in support of its case has examined two prosecution witnesses in all. PW 1 - Manish Shama, the victim complainant is the only star and material witness of the occurrence and of identification of the accused.
PW 2 -ASI Sardar Singh is the IO of this case.
5. It is pertinent to mention here that the only star and material witness of the occurrence of looting i.e. PW 1 - Manish Sharma, complainant has supported the prosecution case only with regard 19.03.08 4 to occurrence of looting but has failed to identify the accused as one of the authors of the crime further stating that the said accused was not present at the time of the said incident. This witness was cross examined at length by ld. Addl PP for the State but nothing material has come on record against the accused which may connect him with the crime in question.
6. In the statement recorded under section 313 CrPC accused denied the prosecution case in toto and submitted that no recovery was effected from him or even at his instance and that he has been falsely implicated in this case.
The accused has not opted to lead any Defence Evidence.
7. I have heard Shri B.S. Kain, ld. Addl PP for the State and ld counsel for the accused and have marshalled the evidence on record.
8. The first and main argument urged by ld defence counsel is 19.03.08 5 that since the material victim public witness of robbery or of any threat, has not supported the prosecution case on the point of identity of the accused, he is entitled to acquittal under section 392/394 read with section 397/34 IPC. He has also submitted that the accused is entitled to acquittal even under section 411 IPC in as much as the only victim prosecution witness of this case has not supported the case of any recovery having been effected either from the accused or at the instance of the accused. Admittedly no effort was made to join any other public prosecution witness in this case and police officials cannot be taken as independent witnesses especially when victim prosecution witness does not support the prosecution case.
9. Shri B.S. Kain, Ld. Addl PP for the State, on the other hand, conceded to the extent that no case under section 392/394 read with section 397/34 IPC is made out against the accused as the only material star and victim public witness has not supported the prosecution case on the point of identity of accused. But regarding other contention of the ld defence counsel, Shri B.S. Kain Ld. Addl PP contended that though public witness has not supported the prosecution case on the point of section 411 IPC but as he has 19.03.08 6 identified his mobile phone as Ex. P 1 accused can be held guilty under section 411 IPC or at least for an offence punishable under section 103 D.P. Act for unaccountable possession of the mobile by the accused.
10. As regards first contention of the ld. defence counsel admittedly there is no incriminating material against the accused for offence punishable under section 392/394 read with section 397/34 IPC and the same is also conceded by Shri B.S. Kain, ld. Addl PP for the State. Admittedly the only star and key public witnesses of robbery namely PW 1- Manish Sharma, the complainant did not support the prosecution case on the point of the identity of the accused. Hence, accused - Khursid is entitled for acquittal and is acquitted of the offences under sections 392/394 read with section 397/34 IPC for which he had been charged.
11. As regards, for offence under section 411 IPC against the accused, it is clear from the record that the only public witness regarding alleged recovery of mobile phone has also not supported the case of 19.03.08 7 prosecution on the point of alleged recovery from the accused. He in clear terms stated that mobile phone was produced before him by the police and further that no other independent witness has been joined by the police at the time of the alleged recovery of mobile phone from the accused and all this is damaging the prosecution case due to which accused is entitled for its benefit and hence accused Khursid is also acquitted for offence punishable under section 411 IPC for which he had been charged.
File be consigned to RR under section 299 CrPC with the option to reopen the same as and when co accused appears or is arrested in this case. Dictated and announced in open court on 19th day of March, 2008.
(S.C. Malik) Addl. Sessions Judge:
KKD Courts.: Delhi 19.03.08