Delhi District Court
State vs . Mohd. Shakeel on 27 September, 2014
IN THE COURT OF MS. RAVINDER KAUR,
DISTRICT & SESSIONS JUDGE : SOUTH WEST
DISTRICT DWARKA COURTS : NEW DELHI.
Unique Case ID : 02405R0066782014
Session Case No : 12/2014
Date of Institution : 13.3.2014
Date of Decision : 27.9.2014
State Vs. Mohd. Shakeel
S/o Mohd. Mansoor Ali
R/o Village Kalika Badi,
PO Fakir Badi, PS Moral Ganj,
Distt. Bagerhat, Bangladesh.
FIR No : 331/2013
PS : Dwarka South
U/S : 458/34 & 395/397 IPC.
For State : Sh. R. K. Pandey,
Ld. Public Prosecutor S/W.
For Accused : Sh. Rajesh Kumar
Mishra, Advocate.
JUDGMENT
1. The accused has faced trial for offence under Section 458/34 and 395/397 IPC.
2. The prosecution case is that on 18.9.2013, DD No. 5 A was marked to ASI Ram Kishor, who along with Ct. Sonu Tomar reached the spot i.e. A-261, Sector-8, Bagdola, Delhi, and found that grill of drawing room was lying broken and articles inside the rooms were lying scattered. The almirahs in the house were found open. The inmates of the house informed that 3-4 boys, who were armed with weapons, tied SC No. 12/2014 State Vs Mohd Shakeel Page 1/18 FIR No. 331/13 PS Dwarka South them and committed dacoity. SHO and crime team also reached the spot. Crime team inspected the spot, took photographs and lifted the chance prints from the spot. Dog squad also inspected the spot. One of the inmates of the house i.e. Devender Solanki gave statement to the police to the effect that he is an Interior Designer having his office at Nehru Place. On the intervening night of 17/18.9.2013, at about 2.00 am, while he was sleeping in his room at ground floor, somebody woke him up. He saw 3-4 boys, aged between 25 to 28 years, were surrounding his bed. He immediately got up. One of the boy gagged his mouth and the other while showing the knife told him not to raise alarm and threatened to kill. Two boys tore of a curtain and tied his hands. They had already tied hands of his mother and father. On their inquiry regarding other members of the family he told them that his elder brother and bhabhi were sleeping upstairs in a room. One boy remained there with his parents and rest of the boys took him upstairs to the room of his brother and bhabhi. His brother and bhabhi were also tied at the point of knife. In the meantime one boy brought his parents upstairs. Those boys made them all sit on the floor and started ransacking the house. They broke open the almirah and bed and looted all the articles. They remained in the house for about 2 ½ - 3 hours and while leaving they tied him (Devender), his elder brother and father in a bathroom which was on the left side and his mother and bhabhi were locked in another bathroom. After about ½ hour his father somehow got himself released and thereafter he released him (Devender) as well as his elder SC No. 12/2014 State Vs Mohd Shakeel Page 2/18 FIR No. 331/13 PS Dwarka South brother. He along with his father and elder brother broke open the door of bathroom and thereafter rescued his mother and bhabhi who were tied in another bathroom.
The accused persons had taken away all the jewellery, cash worth rupees one lac, silver coins and anklets. Since, the accused persons had also taken away their mobile phones, they went to the house of Mr. Amarjeet Lamba, who was residing in their neighbourhood and made a call on 100 number from his phone. He can identify the accused person.
On the basis of said statement, case FIR No. 331/2013 was registered with PS Dwarka South under Section 458/392/397/34 IPC.
During investigation, site plan was prepared at the pointing out of the complainant. Spot was got inspected by Dog Squad and Crime team. Two chance prints taken from the spot, were sent to the Office of Finger Prints Bureau. Crime team got prepared its report. During search, in the park, which was in front of the H.No. A-261, Sector-8, Bagola, one black colour bag was found. It was containing knives and other things. Sketch of recovered knife was prepared. The said bag and its contents were taken into possession and deposited in the malkhana. Teams of police official of PS Dwarka were organized to search the accused persons as per their dossiers, modus operandi and with the help of secret informers. They were also directed to check the footage of CCTV cameras of the area but despite efforts, the accused persons could not be traced.
On 4.12.2013, DD No. 9A, was received at PS SC No. 12/2014 State Vs Mohd Shakeel Page 3/18 FIR No. 331/13 PS Dwarka South Dwarka South, to the effect that SI Vinay Yadav, Special Staff East District, had telephonically informed that accused Shakeel, S/o Mansoor Ali R/o Bangladesh, who had been arrested vide Kalandra under Section 41.1(A) Cr.P.C, had made disclosure statement regarding commission of offence in the present case. The accused was produced in the court of Ld. Metropolitan Magistrate, Dwarka Courts, from where he was arrested in the present case. During TIP, the accused was correctly identified by the witnesses.
Five days PC remand of accused was taken. During interrogation, accused made disclosure statement in which he disclosed the name of his associates. At the instance of the accused, pointing out memo of the spot and the park was prepared. Statement of witnesses were recorded. Result of chance print was obtained from office of Finger Print Bureau. After completion of investigation, the chargesheet was filed to the court against the accused for trial under Section 392/397/458/34 IPC.
3. As per material available on record, charge u/s. 458/34 IPC and 395/397 IPC was framed against the accused, to which he pleaded not guilty and claimed trial.
4. The prosecution in support of its case has examined nine witnesses.
PW 1 Devender Solanki, PW 2 Shri Jai Bhagwan Solanki, PW 3 Miss Anshu, PW 4 Smt Naresh Devi and PW 5 Sh Vivek Solanki are the victims and SC No. 12/2014 State Vs Mohd Shakeel Page 4/18 FIR No. 331/13 PS Dwarka South have deposed on the lines of the case of the prosecution.
PW1 Devender Solanki testified that on the intervening night of 17.18.09.13 while he was sleeping in his room at his house, at about 02:00 am he saw 7/8 persons were surrounding his bed and warned him not to raise alarm or they would cut his neck. They pulled the curtains of his room and tied him. Thereafter they asked him about the details of his other family members which he disclosed to them. Then he was taken by those persons to the room of his parents where 3/4 persons sat on his father. When his mother tried to raise alarm she was threatened to kill PW1. Thereafter the curtains of that room were also pulled and both the parents were tied with the same. After this, PW1 was taken to the room of his brother and bhabhi upstairs while two persons remained in the room of his parents. There also some of them sat on the brother of PW1 and thereafter tied his brother and bhabhi with the help of curtains and sheets. As per his testimony, all those persons broke open two almirahs lying in the storeroom and in the room of PW1 and removed jewellery. All the other cupboards in the house were also opened and ransacked and cash of Rs. 4/5 lacs approximately was also removed by them from the almirah lying in the room of his parents. While leaving, those persons locked PW 1, his brother ie PW 5 Vivek Solanki and his father PW 2 Sh Jai Bhagwan SC No. 12/2014 State Vs Mohd Shakeel Page 5/18 FIR No. 331/13 PS Dwarka South Solanki in the bathroom on the first floor and his bhabhi PW3 Ms Anshu Solanki mother PW4 Smt Naresh Devi were locked in another bathroom on the first floor itself. He further testified that after breaking open the door of the bathroom, he alongwith his brother and father came out and found that the four mobile phones belonging to them were also taken away by those persons. In these circumstances, they made a telephone call to the police from the house of their neighbour. Police arrived at the site and recorded his statement. He proved his statement as Ex PW1/A. He deposed that the investigation was carried out at the spot by the police. He further proved the list of stolen articles as Ex. PW1/B. With regard to the identity of those 7/8 persons who had committed dacoity in his house, PW1 testified that he cannot identify any of those persons. His attention was specifically drawn towards accused Mohd Shakeel present in the court but PW1 stated that he do not remember if he was one of those 7/8 persons.
PW1 further testified that he had participated in TIP proceedings carried out at Tihar Jail and that he had identified one person namely Mohd Shakeel in the proceedings. He voluntarily stated that he had identified that boy as he felt that he was involved in the incident on that night. He further voluntarily stated that the faces of some of those 7/8 boys were covered at the time of SC No. 12/2014 State Vs Mohd Shakeel Page 6/18 FIR No. 331/13 PS Dwarka South incident. In answer to court question as to whether the accused present in the court was the same person whom he had identified in TIP at Tihar Jail, PW 1 stated that he was not the same person who was identified by him in TIP.
PW1 was declared hostile with regard to the identify of the accused.
During cross examination by Ld. PP, though he stated that he had correctly identified Mohd Shakeel in TIP as one of the persons involved in the incident but at the same time he denied that the accused is the same person who was identified by him in the TIP proceedings.
PW1 further stated that the TIP proceedings were carried out within a short span of the incident, he felt that the person whom he had identified in TIP was involved in the incident but now due to lapse of time he was unable to identify the accused present in court.
PW2 Sh Jai Bhagwan deposed on the lines of the testimony of PW1. However, he too did not identify the accused present in the court as the person involved in the incident. He testified that he alongwith his son/PW1 Devender Solanki had participated in TIP proceedings in Tihar Jail and he had identified one accused in those proceedings. He voluntarily stated that the police had already shown him that person in the court prior to the SC No. 12/2014 State Vs Mohd Shakeel Page 7/18 FIR No. 331/13 PS Dwarka South TIP. Further, that he was under the impression that the said person was involved. This witness was also declared by the prosecution and was cross examined. However, he testified that he was unable to say if the accused present in court was the same person who was identified by him during TIP proceedings. He categorically denied the suggestion that the accused present in court was one of those persons who had committed the offence of robbery/ dacoity at his house alongwith his associates.
PW3 Ms. Anshu Solabki, PW4 Smt Naresh Devi and PW5 Vivek Solanki have all testified on the lines of the case of the prosecution but have failed to identify the accused Mohd Shakeel as one of those persons who had committed the offence of dacoity/robbery at their house.
During his testimony, PW5 Vivek Solanki stated that the statement of his brother i.e. PW1 was recorded on 18.09.13 by one constable at the instance of IO Inspector Yogesh and his signatures were obtained thereon. Lateron in the evening Inspector Yogesh and the constable who had written the statement of his brother again visited their house and again recorded the statement of his brother and obtained his signature thereon and left. They received the copy of the said statement and after going through he realized that this SC No. 12/2014 State Vs Mohd Shakeel Page 8/18 FIR No. 331/13 PS Dwarka South was not the statement which was made by his brother prior in time. On his insisting, the earlier recorded statement of his brother was shown to him by the constable which he retained with him and did not return despite being pressurized. PW5 produced the said statement in the court as Ex. PX. He further stated that the IO had directed all his family members to give their statement in their own handwriting and consequently the statements of PW 1 to PW 5 reduced in writing by PW 3 Ms. Anshu Solanki were submitted to the police after 3/4 days of the incident. He produced the photocopies of their statements which were taken on record as Ex. PX 1 to Ex.PX5.
PW 6 is Inspector Yogesh Kumar, the IO who deposed about the investigation carried out by him at the spot on 18.09.13. He further deposed about the arrest of the accused, in pursuance to DD No 9A dated 04.12.13 Mark PW6/A. He proved the disclosure statement of the accused as Ex PW6/A and his arrest memo Ex PW6/B. He further proved the application moved by him for TIP of the accused as Ex PW6/C. During his examination in chief, in answer to court questions, PW6 stated that as per his knowledge only one statement of Devender Solanki ie PW1 was recorded by ASI Ram Kishor on the basis of which FIR SC No. 12/2014 State Vs Mohd Shakeel Page 9/18 FIR No. 331/13 PS Dwarka South was registered. The statement Ex PX of PW1 was shown to the witness and he admitted that it was in the handwriting of ASI Ram Kishor but stated that he had not come across this statement during the investigation. He further admitted that contents of statement Ex.PX and statement Ex PW1/A were different.
PW 7 HC Banwari Lal is the duty officer who proved recording to FIR Ex. PW7/B and his endorsement on the rukka as Ex. PW7/A. PW 8 is ASI Ram Kishor who had reached the spot on 18.09.13 in pursuance to DD No 5A. As per his testimony, he recorded the statement of PW 1 Devender Solanki and prepared rukka Ex PW8/A and sent the same to the PS through constable for registration of FIR. He proved the seizure memo Ex. PW8/B vide which the exhibits were collected from the spot.
During his examination in chief, in answer to court question, he stated that he had recorded the statement of Devender Solanki twice. On being shown statement Ex PX, he admitted that this was the first statement of Devender Solanki recorded by him.
PW9 Sh.Ravinder Singh- II MM had conducted the TIP proceedings. He testified that he had fixed the SC No. 12/2014 State Vs Mohd Shakeel Page 10/18 FIR No. 331/13 PS Dwarka South date of TIP vide his noting Ex PW9/A on the application. He further testified that accused Mohd Shakeel was produced before him by Asstt. Supdt. Central Jail who also identified him. During the TIP proceedings witness Jai Bhagwan and Devender Solanki had correctly identified accused Mohd Shakeel. He proved the TIP proceedings as Ex PW9/B.
5. After the conclusion of the prosecution evidence, the statement of the accused Mohd Shakeel was recorded u/s. 313 Cr.P.C., whereby he denied the entire incriminating evidence appearing on record against him. He stated that during police custody remand, he was given beating by the police. 5/6 victims of this case were called in the PS and in his presence itself they were informed by the police that they had arrested him as he was involved in the lootpaat alongwith his associates at their house and they were also told to identify him in front of the Judge.
6. I have heard arguments addressed by Shri R.K.Pandey, Ld. Public Prosecutor and Shri Rajesh Kumar Mishra, Ld. Counsel for the accused and have gone through the material on record carefully.
7. Ld. PP has conceded that none of the victims have identified the accused as one of the persons SC No. 12/2014 State Vs Mohd Shakeel Page 11/18 FIR No. 331/13 PS Dwarka South involved in the robbery/dacoity which took place at their house on the intervening night of 17/18-09-13. However, he has submitted that the accused had been identified both by PW1 and PW2 in Judicial TIP conducted at Tihar Jail by PW9 the concerned Metropolitan Magistrate. It is submitted that in view of this piece of evidence, it stands proved on record that accused was member of a group of 7/8 persons who had committed robbery/dacoity at the house of the victims and thus he is liable to be punished for the offence u/s 458/34 IPC and 395/397 IPC.
8. On the other hand, Ld. Counsel for the accused has submitted that the prosecution has miserably failed to connect the accused with the alleged commission of offence, as all the victims i.e. PW1 to PW5 have failed to identify the accused as one of those persons who had committed robbery/dacoity at their house. That the identification of the accused in TIP proceedings is a weak piece of evidence and in the absence of the witnesses identifying the accused in the court, the conviction cannot be based on this piece of evidence. Further there is no recovery of stolen articles from the possession of the accused nor there is any other incriminating evidence on record to connect him with the alleged commission of offence. It is prayed that the accused is liable to be acquitted.
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9. After hearing the submissions of both the parties I have gone through the material on record carefully.
10. Admittedly, none of the public witnesses have identified the accused as one of the persons who had committed dacoity in their house. The only piece of evidence relied upon by the prosecution is the TIP proceedings carried out by PW 9 at Tihar Jail, whereby the accused Mohd Shakeel was identified by PW1 and PW2. However, this is a weak piece of evidence, particularly, in view of the fact that PW3 in her chief examination itself testified that she cannot identify any of the offenders who had committed dacoity in their house as they had threatened them to keep their heads down. She stated that despite the threats of the offenders she could gain courage to see the offenders a little bit but the accused present before the court was not the offender who had committed robbery alongwith his associates. Besides, it is also observed that PW 2 Sh Jai Bhagwan Solanki who had identified the accused in the TIP proceedings categorically testified in his examination in chief that before he participated in the TIP proceedings, he was shown that person in the court.
Though, PW2 was declared hostile, however, no
suggestion was given to the witness by Ld. PP that the
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FIR No. 331/13 PS Dwarka South
accused had not been shown to him in the court by the police before the TIP proceedings were conducted. The said statement of PW2 finds corroboration from the defence of the accused who in his statement u/s. 313 Cr. PC categorically stated that he was lifted from Shashi Garden, Patparganj on 28.11.2013 by the officials of Special Staff on account of some old case pending at Patiala House Court against him in which he had been declared PO but he was not produced in the concerned court at Patiala House. That he was detained in the PS for 4/5 days and was produced in a Court at Dwarka on 04.12.2013 in this case itself and was sent to one day PC remand and during this he was given beatings at the PS. That 5/6 victims were called in PS and in his presence they were informed by the police and they had arrested him as he was involved in the lootpaat alongwith his associates at their house. They were also told to identify him in front of the Judge. Thereafter he was kept in a room where his signatures were obtained on 20/25 blank papers. PW1 consistently testified in chief examination and thereafter in his cross-examination by Ld. PP that he was unable to identify any of those persons who had committed an offence at his house. He categorically stated that accused present in court is not the same person to whom he identified in the TIP, though at the same time he stated that he had correctly identified SC No. 12/2014 State Vs Mohd Shakeel Page 14/18 FIR No. 331/13 PS Dwarka South Mohd Shakeel in the TIP proceedings as one of the persons involved in the incident and he also stated that when he had identified Mohd Shakeel in TIP at that time he felt that he was the boy who was involved in the incident at night. His said statement itself shows that he was not sure of the fact that accused was involved in the incident but leads to the inference that he had some doubt in this regard. Moreover he himself voluntarily stated that the faces of some of those 7/8 persons were covered at the time of incident. In such circumstances, the identification of the accused by the witnesses in TIP proceedings is of no consequence, particularly when the accused was shown to the witnesses before the judicial TIP was conducted.
11. Admittedly, neither there is any recovery of stolen articles from the possession of the accused nor his finger prints were found at the spot. All these circumstances creates doubt about the involvement of the accused Mohd Shakeel in the aforesaid incident, hence giving him benefit of doubt, the accused Mohd Shakeel is acquitted of the charge u/s 458/34 IPC and 395/397 IPC.
Accused Mohd. Shakeel is directed to furnish personal bond in the sum of Rs. 10,000/- with one surety in the like amount, in view of provisions of Section 437A SC No. 12/2014 State Vs Mohd Shakeel Page 15/18 FIR No. 331/13 PS Dwarka South Cr.P.C with the undertaking to appear before the appellate court, in case appeal against him is preferred by the State.
12. During the course of recording evidence, it has come on record through the testimony of PW5 Sh. Vivek Solanki that during investigation two statements Ex PX and Ex.PW1/A of PW 1 Devender Solanki were recorded. The FIR was registered on the later statement i.e. Ex PW1/A and the statement Ex. PX recorded prior in time was not even placed on record but was produced by PW5 during his testimony. It has further come on record through the testimony of PW6 Inspector Yogesh Kumar as well as PW8 ASI Ram Kishor that both the statements Ex PX and Ex PW1/A were recorded in the handwriting of PW8 ASI Ram Kishor.
PW 6 Inspector Yogesh Kumar has denied any knowledge about recording of statement Ex PX by PW8. However, on the other hand PW 8 has admitted in answer to court question that the statement Ex. PX dated 18.09.13 of Devender Solanki was his first statement and recorded by him. On query as to why he did not send the said statement for registration of FIR, he testified that the senior police officers i.e. ACP, Addl. DCP, SHO were all present at the spot when he recorded the statement Ex PX. The said statement was then taken from SC No. 12/2014 State Vs Mohd Shakeel Page 16/18 FIR No. 331/13 PS Dwarka South him by ACP Sh. Ran Singh Gehlot who alongwith SHO Inspector Rajesh Dogra went to the DCP Sh. A.K. Ojha. After discussing with the DCP, they both returned to the spot and told PW8 to rewrite the complaint and change the number of the culprits mentioned as 6/7 in the statement Ex PX to 3/4. Thereafter under the instructions of SHO Inspector Rajesh Dogra, he again wrote the complaint afresh which is already Ex.PW1/A and in the same he had changed the number of culprits from 6/7 to 3/4.
It is observed that in the statement Ex PX of PW1 Devender Solanki, which was recorded prior in time, the number of the accused persons who had committed dacoity in his house, finds mention as 6/7 persons whereas in the statement Ex PW1/A recorded subsequently, the number of the accused persons is mentioned as 3/4. It appears that the number of the accused persons was reduced to 3/ 4 from 6/7, may be with an intention to dilute the offence as if, theft or extortion is committed by less than five persons, it amounts to robbery as defined under Section 390 IPC and if the robbery is committed by five or more persons conjointly, it becomes dacoity in terms of Section 391 IPC, which is a graver offence than that of robbery. It is observed that in the present case the chargesheet had been filed for the prosecution of accused under Section SC No. 12/2014 State Vs Mohd Shakeel Page 17/18 FIR No. 331/13 PS Dwarka South 458/394/397/34 IPC and 14 Foreigners Act. Then what could be the motive behind recording of the second statement of PW1 Devender Solanki i.e. Ex PW1/A, on the basis of which, the FIR was registered, has not been clear on the record. Besides the discrepancy in the number of the accused persons involved in the incident, there are other contradictions also in the statement Ex PX and Ex PW1/A. The allegations levelled by PW8 against his senior officers, i.e. the then ACP Ran Singh Gehlot and the then SHO P.S. Dwarka South Inspector Rajesh Dogra that he had written the complaint i.e. Ex PW1/A at the instance of these two officers and changed the number of culprits from 6/7 to 3/4, being serious in nature, an inquiry is liable to be conducted against them. As such, the copy of the judgment be sent to the Commissioner of Police to hold necessary inquiry and to take appropriate action.
File be consigned to Record Room.
Announced in open court on 27.9.2014 Ravinder Kaur, District & Sessions Judge, South-West District, Dwarka Courts, New Delhi.
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