Delhi District Court
State vs . (1) Zakir Hussain on 15 May, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 68/2011
Unique Case ID No.: 02404R0052272009
State Vs. (1) Zakir Hussain
S/o Baba Khan
R/o X241, Camp No.1,
Nangloi, Delhi
(Convicted)
(2) Zuber Khan
S/o Hanif Khan
R/o X187, Camp No.1,
Nangloi, Delhi
(Convicted)
(3) Gulzar
S/o Mohd. Akhiyar
R/o X193, Camp No.1,
Nangloi, Delhi
(Convicted)
(4) Oppilmanic Khan
S/o T. Raj Nandram
R/o House No. 287,
Camp No.1, Nangloi, Delhi
(Acquitted)
(5) Satya Dev Sharma
S/o Sudesh Sharma
R/o E2/361, Sultan Puri,
Delhi
(Acquitted)
St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 1
FIR No.: 524/2008
Police Station: Shalimar Bagh
Under Section: 392/397/34 Indian Penal Code
Date of committal to sessions Court: 2.7.2009
Date on which orders were reserved: 23.4.2012
Date on which judgment pronounced:3.5.2012
JUDGMENT:
1. As per allegations, on 20.10.2008 at 10:10 PM at Ashok Vihar T Point, Ring Road Delhi the accused Zakir Hussain, Zuber Khan and Gulzar in furtherance of their common intention committed robbery of HCL Laptop, leather bag, Reliance connect card, one CD, one adopted micro from the person of victim Ashwani Kumar Jain by showing a knife, a deadly weapon to him. It is further alleged that on 21.10.2008 the accused Satya Dev Sharma dishonestly received stolen articles i.e. HCL Laptop, leather bag, Reliance connect card, one CD and one adopter micro which he retained with him knowing and having reasons to believe the same to be stolen property from complainant Ashwani Kumar Jain. In so far as the accused Opilmanic Khan @ Anna is concerned, the allegations against him are that on 21.10.2008 at Camp No.1, Nangloi near bushes he was found in possession of stolen mobile phone make Sony Ericsion Model No. K530i belonging to the complainant Aswani Jain St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 2 which he bought from Zakir Hussain, Zuber Khan and Gulzar for Rs. 500/ knowing and having reasons to believe the same to be stolen property.
BIREF FACTS/ CASE OF THE PROSECUTION:
2. The case of the prosecution is that on the intervening night of 2021.10.2008 DD No. 4A regarding robbery at Ashok Vihar T Point was received at Police Station Shalimar Bagh pursuant to the which SI Hira Lal along with Ct. Anand reached the spot where they met one Ashwani Jain who informed them that while he had parked his car bearing No. DL1CG2580 on one side of the road and was talking on his mobile phone, three boys came on two wheeler scooter out of which two boys got down from the scooter and came near the door of the car. One of the boys took out the knife and showed it to him and asked him to shift on the seat next to the driver seat after which the boy who was having the knife sat on the rear seat whereas the other boy sat on the driver seat. Ashwani Jain further told SI Hira Lal that the boy who was sitting on the back seat removed his mobile and Rs.9,500/ from the front top pocket of his shirt after which the person sitting on the driver seat started driving the car and while they were about to take the Wazirpur Flyover, they dropped him from the car whereas the third boy who was on the scooter also went away independently.
St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 3
3. On the basis of the statement of Ashwani Jain the present FIR was got registered. On 24.10.2008 information was received that the esteem car bearing no. DL1CG2580 was found abandoned within the jurisdiction of Police Station Paschim Vihar after which the said car was released to the complainant on Superdari. On 6.11.2008 information was also received regarding the arrest of accused Zakir Hussain, Zuber Khan, Satyadev Sharma, Opilmanic Khan @ Anna under Section 61.A and 102 Cr.P.C. from Police Station Mangol Puri who had disclosed their involvement in the present case. All the aforesaid accused were formally arrested in this case. Pursuant to his arrest the accused Opilmanic Khan @ Anna got recovered one mobile phone make Sony Ericson (belonging to the victim) from near the railway line, Camp No.1, Nangloi. Further, the accused Zakir Hussain and Zuber Khan got recovered the HCL Laptop belonging to the complainant/ victim from the shop of Satya Dev Sharma. On 1.3.2009 the accused Gulzar surrendered before the Court after which he was formally arrested. After completion of investigations charge sheet was filed against all the accused.
CHARGE:
4. Charges under Sections 392/397/34 Indian Penal Code were settled against the accused Zakir Hussain, Zuber Khan and Gulzar to which they pleaded not guilty and claimed trial. Further, charges under Section 411 Indian Penal Code were settled against the accused St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 4 Opilmanic Khan and Satyadev Sharma to which they also pleaded not guilty and claimed trial.
EVIDENCE:
5. In order to prove its case the prosecution has examined as many as twelve witnesses as under:
Public witness/ complainant/ victim:
6. PW2 Ashwani Jain is the complainant/ victim in the present case who has deposed that he was running a business of generator parts. According to him, on 20.10.2008 he was coming from Mori Gate and going towards his house in his Esteem Car of golden colour bearing no. DLICG2580 and at about 10:00 PM he reached near Wazirpur at T point of Ashok Vihar on Ring Road. He has deposed that he received a telephone call from his friend on his mobile phone bearing no. 9818109400 on which he parked his vehicle by the side of the Ring Road and attended the phone call of his friend. According to the witness, three boys came there on their scooter and stopped their scooter near him after which two boys came near him, one of them snatched his mobile and pointed out an open knife on his abdomen after opening the gate of his vehicle. He has further deposed that the person who showed the knife to him asked him to go to the other seat near the driving seat and at the same time, the other boy opened the back door of his vehicle and entered St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 5 and put an open knife on his neck. The witness has also deposed that the first boy sat on the driving seat whereas he (victim) was made to sit near the driver seat after which the first boy started driving the vehicle and moved it towards Wazirpur Flyover. According to him, the boy who was sitting on the back seat asked her to close his eyes and removed Rs. 9,500/ from the pocket of his shirt. He has testified that they stopped the vehicle on the bridge and asked him to get down and further told him that they would get his car in the morning. The witness has also deposed that the boy who was on the scooter also started moving with the car and when he got down from the vehicle at that time another mobile phone bearing No. 9312341434 was in his pant pocket after which he immediately made a call at 100 number. The witness has further testified that his vehicle was having two briefcases, one containing Rs.20,000/ and some papers of his shop whereas the other briefcase was containing court case papers and one laptop Make HCL which was also lying in the Dikki. He has further deposed that the police reached the spot and recorded his statement which is Ex.PW2/A. According to the witness, on one occasion he was called by the police at Tihar and on another occasion at Rohini Jail for identification of the accused persons but the accused refused to join the TIP proceedings. He has testified that on the next day of the incident, he was informed by the police that his Esteem car was recovered which he subsequently took on Superdari and later on he came to know that his laptop and mobile phone were also recovered by St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 6 the police which were taken by him on Superdari. The witness has proved having produced the copy of RC of Esteem car (mark A) and bill receipt of mobile phone (mark PW2/C) to the police which was seized vide memo Ex.PW2/B.
7. The witness has correctly identified the accused Zakir Hussain by pointing out towards him as the person who was driving the scooter and came to him with accused Gulzar and Zuber. He has further correctly identified all the three accused and according to him, accused Zuber came to him first and opened the driver side gate and put the knife on his abdomen and snatched his mobile and asked him to sit near the driver seat and started driving the vehicle. Further, he identified the accused Gulzar as the person who entered into his Esteem car from back gate and put a knife on his neck and also removed Rs.9,500/ from his pocket. He has produced the case property i.e. the Esteem car bearing no. DL1CG2580 which is Ex.P1 and the Superdarinama is Ex.PW2/D; HCL laptop with black colour bag which is Ex.P2; one briefcase of dark maroon colour make Odyssey which is Ex.P3 and another briefcase of grey colour make Sony in which Rs. 20,000/ and some papers were lying at the time of robbery, which briefcase is Ex.P4. The witness has deposed that he had also obtained his mobile phone bearing no. 9818109400 make Sony Ericson on Supedari but he has not produced the same as the same was stolen St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 7 thereafter. However, he has identified the said mobile by its photographs which are Ex.P5/1 to Ex.P5/3.
8. In his crossexamination the witness has deposed that he is a Graduate and can read, write and speak Hindi as well as English. He has admitted that his statement Ex.PW2/A was recorded at Police Station but has denied that no proceedings were conducted by the police officials at the spot of occurrence and states that they inquired from him about the incident. He has deposed that police also prepared site plan of the spot and also inspected the place from where the accused persons boarded in his vehicle and left him at another place. He has testified that his subsequent statement were recorded on 5.11.2008, 17.11.2008 and 29.12.2008 when he had gone to take his articles on Superdari. According to him, his another statement was recorded by police when he had visited the Court on 20.11.2008 when he identified the accused Zakir Hussain and Zuber who committed robbery. He does not remember if he had stated to the Investigating Officer in his statement that on 20.10.2008 he was coming from Mori Gate and going towards his house. He has further deposed that he had told the Investigating officer in his statement Ex.PW2/A that one of the boy pointed out an open knife on his abdomen. However, when confronted with his statement the words 'on my abdomen' was not found recorded. He also does not remember whether he has stated in his statement Ex.PW2/A that the boy who was sitting on the back seat asked him to close his eyes. He has testified that he had not St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 8 stated to the Investigating Officer in his statement Ex.PW2/A that when he got down from the vehicle after the incident, another mobile 9312341434 was in his pant pocket which he immediately took out and made a call to police at 100 number. He has further deposed that he had gone through the contents of his statement Ex.PW2/A and after being satisfied himself he had signed it. He has admitted that in his statement Ex.PW2/A the description of all the boys/ persons was not mentioned by the police or that he had not stated that he had seen the faces of those three persons. The witness has also admitted that the company, model and colour in respect of the mobile and laptop was not mentioned in his statement Ex.PW2/A and that the robbed mobile and laptop of similar model and colour were available in the market easily. According to the witness, he did not appear before any Magistrate to identify his mobile and laptop and has voluntarily added that every mobile has unique IMEI Number. He has denied the suggestion that he had seen the accused Zuber for the first time in the Court and has admitted that he had seen him previously on 20.11.2008.
9. According to the witness, the incident to robbery continued for about 2025 minutes and the glasses were got closed by the accused persons due to which reason he could not see any public persons during the incident. He is unable to tell the company and also the make of the scooter on which the robbers had come. He has testified that all the money which he was carrying at the time of robbery were of St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 9 denomination of 500 and the remaining amount of Rs.20,000/ were in the denomination of 100. He has admitted that he did not identify the briefcase/ bags before any Magistrate. According to him, the police never showed him the photograph of accused Zuber Khan nor he saw Zuber in the police station. The witness has further deposed that he visited the police station for four time in connection with this case. He has admitted that on 5.11.2008 he visited the police station. According to him, he came to know the name of the accused persons when he had visited at Rohini Jail and Tihar Jail for TIP proceedings. Witness has further stated that he came to know that his robbed laptop was recovered in the second week of November 2008 but he is not aware as to who informed him from the police station. He has testified that he was not called by the police at the time of recovery of the laptop. He has denied the suggestion that he had given contradictory statements regarding the amount and articles robbed from him since he was deposing falsely regarding the exact amount and the articles. The witness has also denied the suggestion that he had identified the accused at the instance of the Investigating Officer or that the police did not met him during the period 15.11.2008 to 20.11.2008. He has further denied the suggestion that he saw accused Zakir at Police Station on 5.11.2008 or that the police pointed out towards Zakir and suggested him to identify him as a robber. He has also denied that the accused Gulzar did not put any knife on his neck and snatched money from the front pocket of the shirt.
St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 10
10. The witness was recalled pursuant to the application under Section 311 Code of Criminal Procedure wherein he has deposed that he told to the police in his statement dated 20.11.2008 that the accused Zuber had come to him first and opened driver side gate and put the knife on his abdomen and snatched his mobile phone and asked him to sit near the driver seat and further he was driving the vehicle continue. When confronted with the statement Ex.PW2/DA where it was not found so recorded and it is recorded that the witness identified the accused Zuber as the person who robbed laptop, mobile and money on 20.10.2008 along with accused Zakir. According to the witness, he does not recollect if he had told the police in his statement dated 15.03.2009 that accused Gulzar was the person who entered into his Esteem Car from the back gate and put a knife on his neck and also removed Rs. 9,500/ from his pocket. The statement under Section 161Cr.P.C. dated 15.03.2009 was read over and explained to the witness on which he has deposed that he does not remember about the statement. He has denied the suggestion that he has intentionally not disclosed the actual facts regarding the identity of the accused as he had identified them at the instance of the Investigating Officer.
Police/ official witnesses:
11. PW1 ASI Azad Singh is a formal witness being the Duty Officer who has deposed that on 21.10.2008 he was posted as Duty St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 11 Officer at Police Station Shalimar Bagh from 12:00 midnight to 8:00 AM and on that day at about 1:55 AM, he received a rukka through Ct. Anand sent by SI Hira Lal for registration of the FIR. According to the witness, he made an endorsement on the rukka vide Ex.PW1/A and he got recorded the FIR on computer through Computer Operator copy of which FIR is Ex.PW1/B. He has deposed that the investigation of this case was marked to SI Hira Lal.
12. In his crossexamination the witness has deposed that the computer operator took about 3035 minutes for recording the FIR. He has denied the suggestion that no rukka was received by him.
13. PW3 Lady Ct. Minal is also a formal witness being the DD Writer who has deposed that on 6.11.2008 she was posted as DD Writer at Police Station Shalimar Bagh. According to her, on that day at about 11:20 AM SI Sanjay from Special Staff Outer District informed that accused Zakir Hussain @ Sakir S/o Babu Khan, R/o X241, Camp No.1, Nangloi; Zuber Khan S/o Hanif Khan, R/o X187, Camp No.1, Nangloi; Satyadev Sharma S/o Sh. Sujit Sharma, R/o E2/361, Sultanpuri; Popli Malkan @ Alla (Opilmanic Khan @ Anna) S/o T. Raj Manjuram, R/o X287, Camp No.1, Nangloi were arrested under Section 41.1(d) and 102 Cr.P.C. vide DD No. 81B, Police Station Mangolpuri and they disclosed about the crime of Shalimar Bagh and they would be produced at 2:00 PM in Court No.6, Rohini. According to the witness, she recorded the said information vide DD no.21B attested copy of which is St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 12 Ex.PW3/A and the information of this DD was sent to SI Sudhir Gulia.
14. In her crossexamination the witness has deposed that SI Sanjay Kumar did not tell her on which day the accused persons were arrested. She has denied the suggestion DD No.21B was fabricated later on at the instance of the Investigating Officer.
15. PW4 Ct. Mehendi Hassan is also a formal witness who has deposed that on 21.10.2008 he was posted as DD Writer as Police Station Shalimar Bagh when at about 12:30 PM, Control Room informed that three boys taken vehicle No. DL1CG2580 of golden colour, Rs. 10,000/, a mobile phone from Ashok Vihar Metro Lone, Ring Road, Lawrence Road Mor on the point of knife. According to the witness, he made DD entry in this regard vide DD No. 3B which information was given to SI Hira Lal for further proceedings. He has proved the DD No. 3B attested copy of DD which is Ex.PW4/A. In his crossexamination the witness has denied the suggestion that DD No.3B was fabricated later on at the instance of the Investigating Officer.
16. PW5 Ct. Anand Yadav has deposed that on 20.10.2008 he was posted at Police Station Shalimar Bagh as Constable and on that day on receiving DD No.3B he along with SI Hira Lal went to TPoint, Ashok Vihar where complainant Ashwani Jain met them. According to the witness, Investigating Officer handed over the rukka to him at about 1:40 PM in the night for getting the case registered pursuant to which he got recorded the FIR No. 524/08 under Section 392/34 IPC and handed St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 13 over the same to the Investigating Officer.
17. In his crossexamination the witness has denied the suggestion that the statement of Ashwani Jain was not recorded in his presence or that no rukka was handed over to him for registration of FIR. He has also denied the suggestion that he never visited the spot of occurrence or that he never joined the investigations of this case.
18. PW6 Inspector Sanjay Gade has deposed that on 5.11.2008 he was posted as Sub Inspector at Special Staff, Outer District, Sector1, Rohini when he received a secret information that two desperate criminals likely to commit a heinous crime. According to the witness, he shared this information with the senior officers after which a raiding party was constituted comprising of SI Jogender, HC Yogesh, HC Rishi, Ct. Prem, Ct. Satbir and Ct. Anoop. He has testified that he along with the members of the raiding party and secret informer reached at NDPL Office near temple at about 2:30 PM where at the instance of the secret informer two boys were apprehended while they were coming on a motorcycle from the side of NDPL Office. According to him, both the boys were interrogated and they disclosed their names as Zakir Hussain and Zuber Khan. He has deposed that at the time of apprehension accused Zakir was driving the motorcycle whereas accused Zuber was the pillion rider. The witness has further deposed that since the involvement of both the accused was ensured hence they were arrested under Section 41.1 (a) (d) read with 102 Cr.P.C. According to him, at the St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 14 instance of both the accused, three other persons namely Satyadev Sharma, Opilmanic Khan @ Anna and Manjit were also arrested under Section 41.1 (a) (d)/102 Cr.P.C. vide Kalandra mark PW6/A, original of which is kept in case FIR No.516/08 of Police Station Mangolpuri. He has further proved that all the accused were interrogated and they made their disclosure statements in respect of their involvement in the various crimes as well as present case. The disclosure statement of accused Opilmanic Khan @ Anna is Mark PW6/B; disclosure statement of accused Zuber Khan is Mark PW6/C; disclosure statement of accused Zakir is Mark PW6/D and disclosure statement of accused Satyadev Sharma is Mark PW6/E. He has testified that in the disclosure statement of the accused persons they disclosed that he can get recover the laptop and mobile phone etc. of this case from the persons to whom they sold. The witness has also deposed that when the accused Zuber and Zakir were arrested, at their instance one laptop of this case was recovered from accused Satya Dev Sharma from his electrical shop in respect of which a seizure memo was also prepared which is kept on the judicial file of FIR No. 516/08, Police Station Mangol Puri. According to the witness, all the accused persons were produced before the Court and Investigating Officer SI Sudhir Gulia also reached to the Court with staff and he handed over all the memos to him and accused persons were sent in judicial custody in the Kalandra and the laptop in sealed condition was deposited with MHCM of Police Station Mangol Puri. He has St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 15 further deposed that one knife was also recovered from accused Zakir at the time of his apprehension and he prepared the sketch of knife which was turned into cloth parcel, sealed and seized by seizure memo. He has testified that the motorcycle no. DL9SQ4868 make Discover was also seized.
19. He has correctly identified the accused Zakir Hussain, Zuber Khan, Opilmanic Khan @ Anna and Satyadev Sharma in the Court. He has further deposed that the laptop make HCL and a bag were seized in case FIR No. 516/08 of Police Station Mangol Puri vide Ex.PW6/A30; the bag was also containing two bills in the names of Ashwini Jain which are Ex.PW6/A31 and Ex.PW6/A33; the laptop make HCL in a black bag is Ex.P2. He has proved that the accused Satyadev was arrested vide Ex.PW6/A21 and his personal search was conducted vide Ex.PW6/A22. He has correctly identified the knife which was recovered from the possession of accused Zakir and sketch of the knife was prepared vide Ex.PW6/A27 which knife is Ex.P6. The witness further deposed that during investigation it was revealed that the knife was also used in the present case. He has identified the laptop by photographs which are Ex.P7 and Ex.P8.
20. In his crossexamination the witness has deposed that his statement was recorded by the Investigating Officer but he does not remember the date on which the same was recorded. According to the St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 16 witness, he has gone through the contents of his statement which statement recorded by the Investigating Officer was correct and complete. He has stated that he had told to the Investigating Officer that on 05.11.2008 he received a secret information that two desperate criminals likely to commit one heinous crime which information he shared with the senior officers and a raiding party was constituted comprising of SI Joginder, HC Yogesh, HC Rishi, Ct. Prem, Ct. Satvir and Ct. Anoop but when confronted with the statement Ex.PW6/DA the said fact was not found so recorded. According to the witness, he had not stated to the Investigating Officer in his statement Ex.PW6/DA that at the instance of secret informer two boys were apprehended while they were coming on motorcycle from the side of NDPL office. The witness has further stated that he had stated to the Investigating Officer in his statement that both the boys were interrogated and they disclosed their names as Zakir Hussain and Zuber but when confronted with the statement Ex.PW6/DA the said fact was not found recorded. According to him, he has stated to the Investigating Officer that at the time of apprehension, accused Zakir was driving the motorcycle whereas accused Zuber was pillion rider but when confronted with the statement Ex.PW6/DA the said fact was not found recorded. He has testified that he had not stated to the Investigating Officer in his statement that at the instance of Zuber and Zakir accused Satyadev Sharma Oppil Manikkam @ Anna and Manjeet were also arrested and that in the disclosure statement accused persons St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 17 disclosed that they could get recovered the laptop and mobile etc of this case from the person to whom they sold and in pursuance of disclosure statement of accused Zuber and Zakir one laptop of this case was recovered from accused Satdev from his electric shop and seizure memo in this respect was also prepared. According to the witness, he had not stated to the Investigating Officer in his statement that one knife was recovered from accused Zakir at the time of his apprehension and he prepared the sketch of the knife and same was sealed and motorcycle No. DL9SQ4868 was also seized. He has denied the suggestion that accused persons never made any disclosure statement and they were forced by him to put their signatures at the special staff office and subsequently those papers were misused by him by falsely arresting them. He has also denied the suggestion that nothing was recovered from or at the instance of any accused persons and the entire recoveries were planted upon them at special staff office. The witness has further denied that accused persons have been falsely implicated in this case by him at the instance of the Investigating Officer to solve a blind case of robbery. He has also denied the suggestion that he has prepared all documents at special staff office and subsequently manipulated all of it.
21. PW7 Ct. Prem Singh has deposed that on 5.11.2008 he was posted at Special Staff, Outer District, Sector 9, Avantika, Rohini when Inspector Sehgal got a secret information that the boys involved in robberies and other incident would come at Industrial Area Mangol Puri, St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 18 NDPL Office Road No. 318. According to the witness, Inspector Sehgal prepared a raiding party comprising of SI Sanjay Gade, SI Jogender, HC Yogesh, HC Rishi Ram, Ct. Anup, Ct. Satbir and himself (witness). He has deposed that at about 2:00 PM they reached near NDPL Office at Road No. 318 where Investigating Officer directed them to divide in the group of two and scattered in the area. The witness has further deposed that at about 2:30 PM two boys came on a bike who parked their motorcycle near the NDPL office and were wandering there. He has testified that at the instance of secret informer both the said boys were apprehended and during interrogation they disclosed their names as Zakir and Zuber. The witness has also deposed that both the boys were interrogated during which they disclosed their involvement in the present case and also disclosed the name of their associate as Gulzar whom they could get arrested. According to the witness, both the accused further disclosed that they had sold the mobile to one person namely Anna which mobile phone they can got recovered. He has also deposed that the accused Zakir also told that he could get recovered the knife which was used the crime. The witness has proved the disclosure statement of the accused Zuber which is Ex.PW7/A; disclosure statement of accused Zakir which is Ex.PW7/B; arrest memo of accused Zuber which is Ex.PW7/C; arrest memo of accused Zakir which is Ex.PW7/D; personal search memos of the accused which are Ex.PW7/E and Ex.PW7/F respectively. According to him, thereafter both the accused led them to St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 19 Camp No.1, Nangloi to the house of accused Opilmanic Khan @ Anna who was apprehended and arrested vide memo Ex.PW7/G; his personal search was conducted vide memo Ex.PW7/H and his disclosure statement was recorded vide memo Ex.PW7/I. He has testified that thereafter the accused persons led them to Karol Bagh from where the accused Manjeet Singh was apprehended and arrested vide memo Ex.PW7/J and his personal search was conducted vide memo Ex.PW7/K after which his disclosure statement was recorded vide Ex.PW7/L. The witness has testified that a mobile make Nokia 2300 was recovered which was taken into possession by preparing a parcel and sealed with the seal of SKG and seized vide memo Ex.PW7/M. He has correctly identified the accused in the Court. However, the identification of the case property was not disputed by the accused.
22. In his crossexamination by the Ld. Defence Counsels the witness has deposed that he does not recollect on how many occasions his statements were recorded but has clarified that one of his statement was recorded at the time of the arrest of the accused on 5.11.2000 at 2.30 PM. He has testified that SI Sanjay did not reduce the secret information into any DD in his presence. Further, according to him, he himself did not make any separate departure entry and has voluntarily added that Incharge had made a combine entry. He has further deposed that the Investigating Officer requested twothree public persons for joining the St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 20 investigation but all of them refused but the Investigating Officer did not note the names and addresses of the said public persons nor any notice was issued by the Investigating Officer to those public persons. He is unable to tell the exact numbers of the documents signed by him and states that the first document which was signed by him was the personal search of the accused Zakir and the last document which was signed by him was the arrest memo of the accused Zakir and Zuber though he does not remember which of the arrest memo was signed by him lastly. According to him, the spot from where Zuber and Zakir were arrested is about two to two and a half kms. away from the Special Staff Office and they reached the spot at about 2 PM. He has deposed that they left the Special Staff office at about 1.30 PM but he does not recollect the time when they left the spot from where the accused was arrested and states that they remained there for about two to two and a half hours. He has admitted that SI Sudhir had never recorded his statement and states that he does not recollect if he had joined the investigation between 15.11.08 to 20.11.08. The witness has denied the suggestion that none of his statement was recorded on 5.11.08. He has admitted that there is no specific identification mark was put by the Investigating Officer on the seized case property. He has further denied the suggestion that seal after was not handed over to anybody. Initially the witness deposed that the Investigating Officer called Ashwani Jain after arresting accused Zuber and Zakir but later clarified that Ashwani Jain was not called by the St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 21 Investigating Officer at Special Staff Office nor interrogated Ashwani Jain in his presence. According to him, in his presence Ashwani Jain never identified any article belonging to him in the office of Special Staff.
23. He has further deposed that they went to Nangloi in a Santro car but he does not remember the registration number of the car nor he remembers as to who was driving the same. According to him, they reached at Nangloi at about 5 PM and he does not remember if Investigating Officer requested any public person from neighbourhood to join the investigation prior to arrest of accused Opilmanic Khan @ Anna and states that the Investigating Officer requested public person to join the investigations. He is unable to tell the name and addresses of public persons who were requested by the Investigating Officer to join the investigations. The witness has further deposed that the Investigating Officer did not issue any notice to any public person and only accused Anna was present at his house at that time. He has denied the suggestion that accused Zakir Hussain and Zuber Khan never made any disclosure statements or that they were forced by the Investigating Officer to put their signatures on numbers of blank papers after being picked from their house and subsequently all those blank papers were manipulated by him at Special Staff Office. The witness has further denied the suggestion that nothing was recovered at the instance of accused Zakir. He has also denied that that family members of the accused Anna were also present at St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 22 that time or that accused Anna never pointed out any shop of Manjit situated in Karol Bagh area.
24. PW8 Ct. Shesh Dhar has deposed that on 06.11.08 he was posted at Police Station Shalimar Bagh when on receiving DD no. 21B which is already Ex.PW3/A, he came to the court and joined the investigation along with SI Sanjay and SI Sudhir Kumar. According to the witness, four accused had been produced before the court namely Zakir, Zuber, Satyadev and Opilmanic Khan @ Anna who were interrogated by SI Sudhir Gulia and were formally arrested. He has proved the disclosure statement of accused Zakir which is Ex.PW8/A; disclosure of accused Zuber which is Ex.PW8/B; disclosure statement of accused Satyadev which is Ex.PW8/C and disclosure statement of accused Opilmanic Khan @ Anna which is Ex.PW8/D and the arrest memos of Zakir, Zuber, Satyadev and Opilmanic Khan which Ex.PW8/E to Ex.PW8/H respectively. He has further proved the personal search memo of the accused Zakir, Zuber, Satyadev and Opilmanic Khan @ Anna which are Ex.PW 8/I to Ex.PW8/L. The witness has further deposed that the accused Zakir, Zuber and Satyadev were remanded to judicial custody by Ld. MM whereas accused Opilmanic Khan @ Anna was remanded to one day Police Custody after which he along with SI Sudhir got the medical examination of accused Opilmanic Khan conducted from BJRM hospital and thereafter the accused was taken to St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 23 the police station.
25. The witness has also deposed that on 7.11.08 he joined the investigation along with SI Sudhir Gulia when the accused Opilmanic Khan was taken from the lockup who took them to camp no.1, Nangloi near the Railway Lines from where he got a mobile make Sony Ericson K5301 recovered from the bushes on the side of the Railway Line which was in the polythene bag. He has testified that the last digit of the IMEI number of the said phone was 15 but he does not remember the full number. He has further proved that SI Sudhir Gulia prepared the pointing out cum seizure memo which is Ex.PW8/M. According to the witness, on 17.11.08 he came to the court of the Ld. Illaqa Magistrate along with SI Sudhir from where the police custody remand of accused Zakir and Zuber was taken for four days after which the medical of accused Zakir and Zuber was got conducted from BJRM hospital and thereafter they went in search of the accused Gulzar along with Zakir and Zuber. He has deposed that both the accused took them to Camp No.1, Nangloi House No. X193 which was found locked after which they tried to search for accused Gulzar at various places at Sultan Puri and Mangolpuri but he could not be found and thereafter they came back to the Police Station where accused Zuber and Zakir were put in the lockup. He has also deposed that on 18.11.08 and 19.11.08 also they tried to search for accused Gulzar along with accused Zuber and Zakir but could not find him. According to the witness on 6.03.2009 he again came to the St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 24 Court with SI Sudhir Gulia in the Court of Ld. Illaqa Magistrate where the accused Gulzar had surrendered and with the permission of the court SI Sudhir Gulia interrogated accused Gulzar and formally arrested him. He has proved the disclosure statement of accused Gulzar which is Ex.PW8/N; his arrest memo which is Ex.PW8/O and his personal search memo which is Ex.PW8/P. The witness has also deposed that the accused was thereafter remanded to judicial custody and later on 14.03.09 police custody remand of accused Gulzar was taken for one day.
26. In his crossexamination the witness has deposed that his statement Ex.PW8/DX1 dated 6.11.2008 is not complete and has voluntarily added that it does not contain the fact regarding the police custody remand of the accused Opilmanic Khan. He has admitted that his statement does not contain information that any of the accused accused were kept in muffled face and has voluntarily clarified that the Zakir and Zuber were kept in muffled face but the same was not mentioned in his statement. According to the witness, he had gone through the contents of his statement Ex.PW8/DX1 but he does not recollect having told the Investigating Officer that his statement was not complete with regard to the police custody of Opilmanic Khan or with regard to the muffle face of accused Zakir and Zuber. He has denied the suggestion that he improved over his earlier statement or that he has not participated in the proceedings dated 6.11.2008 and it is for this reason that his statement under Section 161 Cr.P.C. does not bear the complete St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 25 details. He has testified that in his presence Ashwani Jain did not join investigation on 6.11.08 and he is unable to admit or deny whether Ashwani Jain had visited Police Station Shalimar Bagh on 6.11.08 but has admitted that the contents of the disclosure statement of accused Zakir, Zuber, Satyadev and Opilmanic Khan are not mentioned in his statement PW8/DX1. He has denied the suggestion that he had put his signatures on all documents on the instructions of the Investigating Officer at Police Station Shalimar Bagh without joining investigation and after going through the contents of the same. The witness has admitted that no specific identification mark was put on the mobile phone prior to sealing the same and that similar mobiles are available in the market of the same model and make. According to him, in his presence no statement of any witness was recorded by the Investigating Officer. He has stated that he does not remember if Ct. Ramesh ever signed any document in his presence but adds that Ct. Ramesh joined investigation with him from 17.11.08 to 20.11.08. The witness has further deposed that in his presence Ashwani Jain joined the investigation on 29.12.2008 and also that in his presence the Investigating Officer never used his seal. He has denied the suggestion that all accused persons were forced to put their signatures on blank papers and those blank papers were manipulated by the Investigating Officer in this case.
27. PW9 SI Hira Lal has deposed that on 20.10.2008 he was posted at Police Station Shalimar Bagh and was on night duty. According St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 26 to him, on the intervening night of 20.10.200821.10.2008 he received DD no.4/A regarding robbery at Ashok Vihar T point on which he along with Ct. Anand reached Ashok Vihar T point where they met one Ashwani Jain who informed him that while he had parked his car on one side of the road and was talking on his mobile phone three boys came on two wheeler scooter out of which two boys got down from the scooter and came near the door of the car; one of the boys took out the knife and showed it to him (Ashwani Jain) and asked him to shift on the seat next to the driver seat; the boy who was having the knife sat on the rear seat whereas the other boy sat on the driver seat after which the boy who was sitting on the back seat removed his (Ashwani Jain's) mobile and Rs. 9,500/ which he had kept on the front top pocket of his shirt and thereafter the person sitting on the driver seat started driving the car and while they were about to take the Wazirpur Flyover they (robbers) dropped him from the car and the third boy who was on the scooter also went away independently. The witness has proved having recorded the statement of Ashwani Jain which is Ex.PW2/A on which he made an endorsement which was converted into rukka and sent the same to the Police Station through Ct. Anand for registration of the FIR. He has testified that in the meanwhile he prepared the site plan at the instance of Ashwani Jain of the spot where the robbery had taken place which is Ex.PW9/A and also prepared the site plan of the place where Ashwani Jain was dropped which is Ex.PW9/B. According to him, Ct. Anand St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 27 reached back to the spot along with copy of the FIR and original rukka which he handed over to him. He has proved having recorded the supplementary statement of Ashwani Jain and thereafter having relieved him from the spot. The witness has testified that on 24.10.08 information was received by him that the vehicle which had been robbed from Ashwani Jain bearing No DL1C2580 make Esteem of golden colour had been found abandoned within the jurisdiction of Police Station Paschim Vihar on which he sent Ct. Kamal and the vehicle was got transferred to Police Station Shalimar Bagh from Police Station Paschim Vihar which car was got deposited in the malkhana of Police Station Shalimar Bagh on 24.10.08 itself and further on 20.10.2008 the further investigation was transfered to SI Sudhir Gulia.
28. In his crossexamination the witness has deposed that he is not aware about the name of the person who had made the 100 number call on the basis of which DD No.3B was got recorded. He is also unable to tell the number from which the said call at no.100 was made. According to him, the spot of occurrence was about two km. away from the Police Station Shalimar Bagh and he reached the spot at about 12.40 AM (midnight). He has also deposed that the proceeding regarding the inquiry from Ashwani Jain took hardly five to ten minutes after which he proceeded to record his statement. The witness has further deposed that he had correct recorded whatever was told to him to by Ashwani Jain and that he had made inquiries from Ashwani Jain regarding the physical St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 28 description and details of the assailants but he did not get prepared any sketches. According to the witness, he had shown the photographs/ dossiers of the various suspects of the Police Station but Ashwani Jain could not identify any of them as assailants. He has admitted that he did not record any other statement except that of Ashwani Jain and that when he reached the spot there was traffic on the road where he met Ashwani Jain. He has also deposed that he did not make any request to any independent public person to join the proceedings and has voluntarily added that he did not find any public person at the spot of the incident apart from Ashwani Jain. He has also deposed that there is a bus stand near the Ashok Vihar Red Light and has admitted that trucks start coming in Azadpur Mandi after 10.10 PM and after the entry opens for heavy vehicles there is heavy movement of trucks and other heavy vehicles on the ring road where the alleged incident took place. The witness has further admitted that the place from where the vehicle was taken in possession by the assailants from Ashwani Jain is near to the bus stand and that behind the bus stand there is the commercial complex, having restaurants and bars. He has also admitted that the customers visit the restaurants and bar in these hours but has denied the suggestion that traffic police officials remains present in Ashok Vihar crossing on ring road where the incident took place. The witness has admitted that just prior to the starting of Wazirpur Flyover there is Punjab Kesri Press but he is unable to tell whether there is police security at the press and PCR St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 29 point in front of Punjab Kesri Press. He has denied the suggestion that area being a commercial complex under the name of Netaji Subash Place is duly supervised by police officers for the sake of security. The witness has denied the suggestion that he did not carry out the initial investigation carefully and in due diligent manner.
29. PW10 HC Moti Ram is the MHC(M) Police Station Mangolpuri who has produced the register No. 19 in respect of deposit of case property in DD No. 81B dated 05.11.2008. According to the witness, as per entries on 05.11.2008 SI Sanjay deposited one sealed parcel of mobile phone, another sealed parcel containing laptop and bag, another sealed parcel containing body of mobile phone, one sealed parcel containing the knife along with copy of seizure memos. He has proved the entry at serial No. 6276 in register No.19 copy of which is Ex.PW10/A running into five pages. He has also deposed that on 16.11.2008 sealed parcel containing laptop and bag were sent to Police Station Shalimar Bagh in case FIR No.524/08 through Ct. Ramesh Kumar vide RC No. 173/08 and entry in this regard is at point X on Ex.PW10/A. He has also proved the copy of RC bearing No.173/21 copy of which is Ex.PW10/B.
30. In his crossexamination the witness has admitted that the aforesaid entries were not made by him or that since entries were not made in his presence hence he is unable to tell that the entries are correct or incorrect. He has voluntarily added that the record is prepared in the St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 30 official capacity and hence the entries are correct.
31. PW11 HC Raghuraj has deposed that on 24.10.2008 he was posted as MHC(M) at Police Station Shalimar Bagh. According to him, on that day SI Sudhir Gullia deposited one esteem car No. DL1CG2580 and two suitcase in this case pursuant to which he made entry in this regard in register No. 19 at serial No. 3744 copy of which entry is EX PW11/A. He has also proved that on 07.11.2008 SI Sudhir Kumar Gulia deposited one mobile phone of this case on which he made entry in this regard at serial No. 3763 in register No. 19, photocopy of which entry is Ex.PW11/B. He has testified that on 16.11.2008 SI Sudhir Gulia deposited one sealed parcel containing laptop and bag duly sealed with the seal of SKG which was brought by Ct. Ramesh Kumar on which he entry in this regard vide entry No. 3778 in register No. 19, copy of which is Ex.PW11/C.
32. In his crossexamination the witness has denied the suggestion that the entries were manipulated at the instance of the Investigating Officer.
33. PW12 SI Sudhir Kumar is the second Investigating Officer of this case who has deposed that on 30.10.2008 he was posted at police station Shalimar Bagh and on that day investigations of this case was marked to him when he collected the file from MHC(R) and perused the same. According to him, on 06.11.2008 he received an information St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 31 vide DD No.21B which is Ex.PW3/A regarding the arrest of accused Zakir Hussain, Zuber Khan, Satyadev Sharma, Opilmanic Khan @ Anna under Section 61.1A and 102 Cr.P.C. Vide DD No. 81B Police Station Mangolpuri and they made disclosure statement of this case. He has deposed that as per the DD he along with HC Sheshdhar reached at court No. 6, Rohini at 2 PM where accused persons were produced by SI Sanjay Kumar before the court. The witness has testified that SI Sanjay Kumar handed over photocopy of Kalandara DD No. 81B and memos under Section 102 Cr.P.C. to him photocopy which is Ex.PW6/A2 to Ex.PW6/A47 on which he moved an application before the court for interrogation and formal arrest of the accused. According to him, the accused Zakir and Zuber were produced in muffled face and as per order of the Court all the accused persons were interrogated and formally arrested in this case vide memo Ex.PW8/F, Ex.PW8/E, Ex.PW8/H, Ex.PW8/G and their personal search was conducted vide memos Ex.PW8/J, Ex.PW8/I, Ex.PW8/L, Ex.PW8/K after which all the accused persons made their disclosure statements vide Ex.PW8/D, Ex.PW8/C, Ex.PW8/B and Ex.PW8/A. He has testified that since the accused Opilmanic Khan disclosed that he can get recovered the mobile, hence he took one day Police Custody remand of the accused Opilmanic Khan whereas the remaining accused persons were sent to judicial custody. He has proved that in pursuance of his disclosure statement on St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 32 07.11.2008 accused Opilmanic Khan led them near railway line camp No. 1, Nangloi in the bushes and got recovered one mobile phone make Sony Ericsson which was kept in a color less polythene and the same was taken into possession vide seizure memo Ex.PW8/M. He has also deposed that the accused was sent in judicial custody and he recorded statements of witnesses. He has also deposed that he moved an application before the court regarding the TIP of accused Zuber Khan and Zakir Hussain which was fixed for 12.11.2008 but the accused persons refused to join the TIP proceedings. According to him, on 17.11.2008 he obtained police custody remand of accused Zakir and Zuber and tried to search accused Gulzar but he could not traceable and in the meantime eye witness identified accused Zuber and Zakir in the court when he recorded his statement after which both the accused persons were sent to judicial custody. The witness has further deposed that he obtained the NBWs of the accused Gulzar and proceedings under Section 82/83 Cr. P.C. were initiated against him. According to the witness, he prepared the challan against the accused Zakir, Zuber, Opilmanic Khan and Satyadev Sharma and filed before the court through SHO.
34. He has further testified that on 01.03.2009 accused Gulzar surrendered before the court and was was formally arrested on 06.03.2009 in this case vide memo Ex.PW8/O and his personal search was conducted vide Ex.PW8/P after which he was interrogated during which he made his disclosure statement which is Ex.PW8/N. He has St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 33 further deposed that the accused was sent in judicial custody in muffled face and he moved an application before the court for TIP of the accused on 13.03.2009 but the accused refused to join the TIP proceedings. He has proved having collected a copy of refusal which is Ex.PW12/A. The witness has also deposed that on 14.03.2009 he obtained one day police custody remand for the recovery of the scooter but it could not be recovered after which accused was sent in judicial custody and has further proved having recorded the statements of witnesses and having prepared supplementary challan of accused Gulzar and filed before the court through SHO. He has clarified that the eye witness identified the accused Gulzar in the police station on which he recorded his statement.
35. He has correctly identified all the accused persons namely Zakir, Zuber, Gulzar, Opilmanic Khan @ Anna and accused Satyadev Sharma in the court and also the case property i.e. the mobile phone from the photographs Ex.PW5/1 to Ex.PW5/3.
36. In his crossexamination the witness has admitted that when he was the Investigating Officer no recovery was effected in pursuance of disclosure statement of accused Zuber and Gulzar and has voluntarily stated that in the disclosure statement it has been mentioned that some case property has already been recovered by accused persons related to this case. He has deposed that Ashwani Jain did not tell him about the involvement of the knife in this case at any point of time. He has denied the suggestion that the fact of using of knife is not mentioned St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 34 in FIR and has admitted that he did not got conducted TIP of the belongings of the complainant but has voluntarily added that mobile phone was connected with the bill produced by the complainant through IMEI Number. He has also testified that the laptop along with bag at the time of recovery was containing bill of purchase in the name of complainant. He has denied the suggestion that accused Zuber and Zakir did not make any disclosure statement and they have been falsely implicated in this case by him in connivance with SI Sanjay Kumar to solve a blind case of recovery or that accused Zuber and Zakir were forced to put their signatures on numbers of blank papers by him at police station and subsequently all those papers were manipulated by him in this case. The witness has further denied the suggestion that accused Zuber and Zakir were shown to the complainant prior to their Test Identification Parade or that he had not conducted a fair investigations in this case. He has admitted that models of HCL laptop which is the case property in the present case are easily available in the market but has voluntarily explained that each piece (of laptop) can be identified on the basis of its number. According to the witness, he did not note down the number of the laptop which was recovered from the possession of accused Satyadev Sharma and has voluntarily added that the recovery had been made by SI Sanjay and therefore he is unable to tell whether the said number has been mentioned by him in the various memos. He has also admitted that pursuant to the disclosure no recovery was made from Satyadev Sharma. St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 35 The witness has further deposed that no public witness was joined at the time of recovery of mobile from Opilmanic Khan. He has admitted that there are large number of residential houses in the vicinity and also some shops. According to him, they did not call any public persons to join them from the said houses and from the shops. He has admitted that along the railway line there is regular patrolling of the railway police but they did not join any witness from the railway police to join the proceedings. He has denied the suggestion that he has falsely implicated all the accused persons in the present case only to work out a blind case.
Statement of the accused/ defence evidence:
37. After completion of prosecution evidence the statements of the accused persons were recorded under Section 313 Code of Criminal Procedure wherein all the incriminating evidence was put to them which they have denied. The accused Zakir Hussan has stated that he is innocent and has been falsely implicated in the present case. According to him, he has nothing to do with the alleged incident and was called by the police officials from his work place after which he was falsely implicated. He has further stated that the case property if any has been planted upon him. According to the accused, he refused to participate in judicial TIP because he was already shown to the witness in the police station.
St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 36
38. The accused Zuber Khan has denied all the allegations against him and has stated that the complainant has made material improvement and has given contradictory statement regarding the actual amount showing that he is a false witness. According to the accused he is innocent and has been falsely implicated to solve a blind case. He has stated that he has nothing to do with the alleged incident nor anything was recovered from his possession or at his instance. According to him, he refused to participate in judicial TIP because he was already shown to the witness in the police station.
39. Similarly the accused Gulzar has denied all the allegations against him and has stated that the complainant has made material improvements and given contradictory statement regarding the actual amount showing that he is a false witness. According to the accused he is innocent and has been falsely implicated to solve a blind case. He has stated that he has nothing to do with the alleged incident nor anything was recovered from his possession or at his instance. According to him, he refused to participate in judicial TIP because he was already shown to the witness in the police station.
40. The accused Oppilmanic Khan has also denied all the allegations against him and has stated that he is innocent and has been falsely implicated. He has stated that he has nothing to do with the alleged incident and the case property has been planted upon him. According to him, he refused to participate in judicial TIP because he St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 37 was already shown to the witness in the police station. He has denied having made any disclosure statement and has stated that after lifted from his house his signatures were obtained by the police on some blank papers which were later on converted into various memos including his disclosure statement.
41. Similarly the accused Satyadev Sharma has denied all the allegations against him. He has stated that he is innocent and had been falsely implicated in the present case. According to the accused, the case property has been planted upon him by the police officials. He has stated that he has clean antecedents and was working in his shop of repairing electronic gadgets. The accused has further stated that he did not make any disclosure statement and his signatures were obtained on blank papers after being lifted from his shop. According to the accused, he was not arrested, rather he was taken from his shop by the police. FINDINGS:
42. I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. My findings are as under:
Identity of the accused:
43. The case of the prosecution is that on 20.10.2008 while the complainant Ashwani Jain was going to his house in his Esteem car St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 38 bearing No. DL1CG2580 and while he reached near Wazirpur at T Point of Ashok Vihar on Ring Road, he received a telephone call of one of his friend on which he stopped his car when three boys came on a scooter and two of the boys came near him and put a knife on his abdomen after opening the door of the car whereas the other boy opened the back door of the car and put a knife on his neck after which he removed Rs.9,500/ from the pocket of his pant. Thereafter both the said boys dropped him and went away along with his car whereas the third boy who was on the scooter also went away.
44. It is evident from the record that after the apprehension and arrest of the accused by the Special Staff, they refused to submit themselves for Test Identification Parade after which the complainant Ashwani Jain identified the accused Zakir Hussain and Zuber in the Court on 20.11.2008; the accused Gulzar on 15.03.2009 in the Police Station as the person who entered into his Esteem Car from the back gate and put a knife on his neck and also removed Rs.9,500/ from his pocket and also specifically identified all the three accused i.e. Zakir Hussain, Zuber and Gulzar in the Court.
45. During his examination in the Court Ashwani Jain has identified the accused accused Zakir Hussain as the person who was driving the two wheeler scooter on which Zuber Khan and Gulzar were sitting. He has further identified the accused Zuber Khan as the person who had first came to him and opened the driver side door and put the St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 39 knife on his abdomen and snatched his mobile phone and asked him to sit near the driver seat and started driving the vehicle; whereas the accused Gulzar entered the car from the back door and put a knife on his neck and removed Rs.9,500/ which he was carrying in the top pocket of his shirt.
46. There is no history of any dispute or animosity between the victim/ complainant Ashwani Jain and the accused Zakir, Zuber and Gulzar and there is no reason why he would have falsely implicate them as his assailants and robbers. Further, the fact that all the accused also refused to submit themselves for Test Identification Parade, an adverse inference is drawn against them as the explanation/ justification given by them to the extent that they were shown to the victim prior to Test Identification Parade does not stand established. In view of the aforesaid, I hereby hold that the identity of the accused Zakir Hussain, Zuber Khan and Gulzar as the assailants who had committed armed robbery upon the complainant Ashwani Jain on 20.10.2008, stands established. Role attributed to the accused:
47. The case of the prosecution is that on the intervening night of 2021.10.2008 pursuant to the receipt of DD No. 4A regarding robbery at Ashok Vihar T Point SI Hira Lal along with Ct. Anand reached the spot where they met the complainant Ashwani Jain who informed them that while he had parked his car on one side of the road St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 40 and was talking on his mobile phone three boys came on two wheeler scooter out of which two boys got down from the scooter and came near the door of the car; one of the boys took out the knife and showed it to him (Ashwani Jain) and asked him to shift on the seat next to the driver seat; the boy who was having the knife sat on the rear seat whereas the other boy sat on the driver seat after which the boy who was sitting on the back seat removed his (Ashwani Jain's) mobile and Rs.9500/ which he had kept on the front top pocket of his shirt and thereafter the person sitting on the driver seat started driving the car and while they were about to take the Wazirpur Flyover they (robbers) dropped him from the car and the third boy who was on the scooter also went away independently. On the basis of the complaint of Ashwani Jain the present FIR was registered under Section 392/34 Indian Penal Code.
48. It is further the case of the prosecution that on 6.11.2008 SI Sudhir Kumar received information vide DD No. 21B that the accused persons involved in the present case namely Zakir Hussain, Zuber Khan, Satyadev Sharma and Opilmanic Khan had been arrested by the Special Staff upon which the Investigating Officer of the present case took the custody of the aforesaid accused from the court of Ld. MM and arrested them in the present case.
49. The only eye witness regarding the incident is the complainant Ashwani Jain himself. He has in his deposition before the Court correctly identified the accused Zuber Khan and Gulzar as the St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 41 persons who had committed robbery upon him on the point of knife and the accused Zakir Hussain who was driving the two wheeler scooter. The relevant portion of his testimony is as under:
"....... I am running a business of generator parts. On 20.10.2008 i was coming from mori gate and going to my house at about 10.00 PM, I reached near Wazirpur at Tpoint of Ashok Vihar on Ring Road .I was in my car no.DL1CG 2580 make Maruti Esteem of golden coluur I received a telephone of my friend on my mobile phone no.9818109400. I parked my vehicle by the side of the Ring Road and attended the phone of my friend .
Three boys on a scooter came there and stopped their scooter near me. Two boys out of three come near me, one of them snatched my mobile and pointed out a open knife on my abdomen after opening the gate of my vehicle. The person who was showing knife to me asked me to go to the other seat near the driving seat. At the same time the other boy opened the back door of my vehicle and entered into the vehicle and put a open knife on my neck. The first boy sat on the driving seat whereas I was made to sit near the driver seat. The first boy started driving the vehicle and it moved towards Wazirpur Flyover. The boy who was sitting on the back seat asked me to close my eyes and he removed Rs.9,500/ from my pocket of the shirt. They stopped the vehicle on the bridge and asked me to get down and they further told me that you will get your car in the morning. The boy who was on the scooter was also moving with my vehicle. When I got down from the vehicle, at that St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 42 time one another mobile no.9312341434 was in my pant pocket. I immediately taken out the mobile and make a phone to the police at no 100. Both the accused persons took my vehicle with them and the third boy also went away on the scooter .
My vehicle was having two briefcase, one containing Rs.20,000/ and some papers of my shop whereas the other was containing Court case papers. One laptop of make HCL was lying in the Dikki. Police reached there and recorded my statement. Same is Ex.PW2/A bearing my signature at point 'A'. They also prepared site plan at my instance.
On one occasion, I was called by the police at Tihar as well as on one occasion, i was called at Rohini Jail for identification of accused persons. The accused persons refused to join TIP proceedings.
On the next day of the incident , I was informed by the police that my Esteem car was recovered . It was subsequently taken by me on superdari.
Subsequently I came to know that my laptop and mobile phone were also recovered by the police and the same were taken by me on superdari.
I also produced copy of RC of Esteem car and bill receipt of mobile phone to the police . It was seized vide memo Ex.PW2/B bearing my signature at point 'A' the photocopy of the RC is mark 'A' and photocopy of the receipt is mark PW2/C. I will produce the same on the next date of hearing . Both the document in photocopy bearing my signature at point 'A'. I can identify the accused persons , if shown to me .
St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 43
At this stage, witness pointed towards accused Zakir Hussain wearing red TShirt today and stated that he was the person, who was driving the scooter and come to me with accused Gulzar and Juber present in the Court . Witness has correctly identified all the three accused persons. Witness further states that the accused Juber wearing blue colour check shirt present in the court today came to me first and opened the driver side gate and asked me to sit near the driver seat and further he was driving the vehicle continue. Witness further states that the accused Gulzar wearing yellow Tshirt today was the persons who entered into my Esteem car from back gate pout a knife on my neck and also removed Rs. 9,500/ from my pocket......"
50. It is evident from the testimony of Ashwani Jain (PW2) that he has duly identified his Esteem car bearing no. DL1CG2580 which is Ex.P1 which he had taken on Superdari vide Superdarinama Ex.PW2/D which car had been robbed from him by the accused Zuber Khan who drove the same away while asking him to get down from the same near the bridge/ flyover. He has further identified the laptop make HCL kept in the black coloured bag which according to him, he had kept in the dikki along with two briefcases which laptop along with the black colour bag is Ex.P2. He has also identified the two briefcases one of dark maroon colour make Odyssey which is Ex.P3 which was containing some Court papers at the time of the incident and another briefcase of St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 44 grey colour make Sony which is Ex.P4 containing Rs.20,000/ and some papers at the time of robbery. The victim Ashwani Jain has further explained that the mobile phone bearing no. 9818109400 make Sony Ericson (allegedly recovered at the instance of Oppilmanic Khan) had been taken by him on Supedari which has again been stolen whose photographs he has identified as Ex.P5/1 to Ex.P5/3.
51. Ashwani Jain had been crossexamined at length by the Ld. Defence Counsels and he has corroborated his examination in chief on material aspects. He has proved that he had another mobile bearing no. 9312341434 which he had kept in the pocket of his pant from which he had made a call to the PCR. He has also admitted that he had not mentioned the make and model of the mobile phone in his statement to the police Ex.PW2/A nor he had mentioned about the details of the laptop and briefcases and also admits that the robbed mobile phone and laptop of similar model and colour were easily available in the market. The witness has also admitted that no judicial Test Identification Proceedings of the mobile phone and the laptop had been conducted and has stated that every mobile has a unique IMEI number mentioned inside the mobile. I may note that the victim in his first statement to the police had mentioned that he had been robbed of Rs.9,500/ which he had kept in the pocket of his shirt and also mentioned that one of the briefcases kept in the dikki was containing Rs.20,000/ but later when the car was found abandoned from Pashim Vihar, there is nothing to show whether at St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 45 this time the briefcases which were kept in the car were recovered from the car along with articles including cash of Rs.20,000/ or if something was missing. The entire evidence of the prosecution is silent on the aforesaid aspects and how the briefcases reached the victim is not clear.
52. The Ld. Defence Counsel has vehemently argued that the witness Ashwani Jain (PW2) has made material improvements in his testimony in the Court since in his statement under Section 161 Cr.P.C. to the police dated 15.3.2009 he has not specifically stated that Zuber and Gulzar were the persons who had entered the car and committed robbery. In this regard I may mention that Zuber and Gulzar were not previously known to the victim Ashwani Jain and there is no occasion for the victim of having come to know of their names and it was only later when he identified them that he came to know about their names. Hence, I hold that there is no material improvement in the testimony of Ashwani Jain.
53. It is evident that the victim has only identified the accused Zakir, Zuber and Gulzar by pointing out towards them and came to know their names during investigations and there is no reason to disbelieve him in this regard. Both the accused Zuber Khan and Gulzar have been correctly identified by the victim Ashwani Jain (PW2) who had shown knives to him while committing robbery in the car which was taken over by the accused Zakir who started drove the car and asked him to get down from the car.
St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 46 Recovery of the stolen articles:
54. The case of the prosecution is that the stolen mobile phone of the victim make Sony Ericson bearing IMEI No. 359019015337915 was recovered from the possession of the accused Opillmanic Khan whereas the laptop make HCL bearing No. 3074AX402813 was recovered from the possession of accused Satyadev Sharma, which mobile phone and laptop have been duly identified by the victim Ashwani Jain in the Court. The Ld. Counsel on the other hand has submitted that there is no recovery either from the accused Opilmanic Khan or from accused Satyadev Sharma and the recoveries have been planted upon them. He has submitted that the accused Oppilmanic Khan is running a mobile repair shop whereas the accused Satyadev Sharma is running a shop of electrical gadgets and for the purposes of working out the present case the said recoveries were planted in connivance with the complainant. The only evidence against the accused Opilmaic Khan and Satyadev Sharma are their own disclosure statement coupled with the recovery of the alleged mobile phone make Sony Ericson and laptop make HCL.
55. I have considered the rival contentions. Firstly I may observe that in so far as the mobile phone is concerned the same was got allegedly recovered by the accused from bushes near Railway Line, Camp No.1 Nangloi which place is easily accessible/ approachable by the public persons. Secondly this is contrary to the investigations conducted by the St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 47 Crime Branch according to which the accused Opilmanick Khan @ Anna had purchased the mobile phone make Noika 2300 from the accused Zuber, Zakir and Gulzar for a sum of Rs.500/ which mobile he (accused Opilmanic Khan @ Anna) further sold to one Manjeet having a shop at Gaffar Market). Thirdly the victim Ashwani Jain has no where given the details of the mobile phone i.e. its make or model nor he furnished the original receipt to the Investigating Officer at that time, rather the photocopy of the receipt of mobile phone was submitted to the Investigating Officer on 29.12.2008 i.e. only after the recovery of the said mobile phone. Further, the original receipt of the mobile phone has also not been placed on the judicial record. Fourthly in order to prove the sale of the said mobile phone to the complainant and to connect the accused Opilmanic Khan with the recovery of the same, it was necessary for the prosecution to have examined the distributor from where the mobile phone was purchased by Ashwani Jain which has not been done. Lastly the original mobile phone has not been produced the same having already been stolen from the complainant again nor any judicial Test Identification Proceedings of the mobile had been conducted.
56. Coming next to the recovery of the laptop from the accused Satya Dev Sharma, I may again observe that Firstly in his statement the complainant did not give any details of the laptop including the model and make nor the copies of the sale document had been handed over to the Investigating Officer at the first instance. Secondly the St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 48 original documents regarding the purchase of the laptop have not been placed on record by the prosecution (what is placed on record is only a photocopy) nor the witness from the shop from where the victim Ashwani Jain had purchased the laptop had been called to the Court for examination to prove the said sale. Thirdly no judicial Test Identification Parade of the laptop has been got conducted. Lastly the recovery of the laptop from the shop of the accused Satyadev Sharma has not been proved beyond reasonable doubt since no public witness has been joined at the time of search by the team of Special Staff despite availability of the same. The only evidence against the accused Satyadev Sharma is his own disclosure statement and the disclosure statements of the coaccused and the knowledge so attributed to him regarding his being aware that the laptop was stolen, has not been proved beyond doubt. Rather, the accused Satyadev Sharma has explained in his statement under Section 313 Cr.P.C. that he is running a shop of electrical gadgets and the laptop in question has been planted upon him. In view of the aforesaid, I hereby hold that the recovery of mobile phone and laptop are not very from suspicion and doubts due to which reasons benefit of doubt is being to the accused Satyadev Sharma.
57. It is further evident from the record that the Maruti Esteem Car bearing no. DL1CG2580 was found abandoned on 21.10.2008 within the jurisdiction of Police Post Miyanwali Nagar, Police Station Paschim Vihar. The said car has not been recovered either on the St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 49 pointing out or at the instance of any of the accused. Further, the prosecution has failed to prove the recovery of briefcases which were present inside the dikki of the car and it appears that the said briefcases which were lying in the car had been recovered on the next day of the incident after which the car was left abandoned in the area of Police Station Paschim Vihar and not at the instance of any of the accused. In view of the above, I hereby hold that the prosecution has failed to prove and establish the recovery of any of the stolen articles from the possession of any of the accused.
CONCLUSION:
58. In the case of Sharad Birdhichand Sarda vs State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 50
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
59. Applying the settled principles of law to the facts of the present case it is evident that in so far as the accused Zakir Hussain, Zuber Khan and Gulzar are concerned, their identity stands established.
Thereafter the following aspects also stand established:
➢ That on 20.10.2008 the complainant/ victim Ashwani Jain was coming from Mori Gate and going to his house in his Esteem Car of golden colour bearing no. DLICG2580. ➢ That at about 10:00 PM he reached near Wazirpur at T point of Ashok Vihar on Ring Road.
➢ That he received a telephone of his friend on his mobile phone bearing no. 9818109400 on which he parked his vehicle by the side of the Ring Road and attended the phone of his friend. ➢ That three boys came there on the scooter and stopped their scooter near him after which two boys came near the victim, one of them snatched his mobile and pointed out an open knife on his abdomen after opening the gate of his vehicle. ➢ That the person who showed knife to the victim asked him to go to the other seat near the driving seat and at the same time, St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 51 the other boy opened the back door of vehicle and entered and put an open knife on his neck.
➢ That the first boy sat on the driving seat whereas he (victim) was made to sit near the driver seat after which the first boy started driving the vehicle and moved it towards Wazirpur Flyover.
➢ That the boy who was sitting on the back seat removed Rs. 9,500/ from the pocket of his shirt after which they stopped the vehicle on the bridge and asked him to get down whereas the boy who was on the scooter also started moving with the car. ➢ That when the victim got down from the vehicle at that time another mobile phone bearing No. 9312341434 was in his pant pocket after which he immediately made a call at 100 number.
60. The victim/ complainant Ashwani Jain has correctly identified the accused Zakir Hussain as the person who was driving the scooter and came to him with accused Gulzar and Zuber; accused Zuber as the person who had first came to him first and opened the driver side gate and put the knife on his abdomen and snatched the mobile and asked him to sit hear the driver sea and started driving the the vehicle; accused Gulzar as the person who entered into his Esteem car from back gate and put a knife on his neck and also removed Rs.9,500/ from his pocket.
St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 52
61. There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
62. The prosecution has proved the identity of the accused Zakir Hussain, Zuber Khan and Gulzar, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by the circumstantial evidence and the witness of the prosecution have been able to built up a continuous link.
63. In view of the above, I hereby hold the accused Zakir Hussain guilty of the offence under Section 392 Indian Penal Code and convict him accordingly. Further, the accused Zuber Khan and Gulzar are hereby held guilty of the offence under Section 392 read with 397 St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 53 Indian Penal Code and convict them accordingly.
64. In so far as the accused Opilmanic Khan and Satyadev Sharma are concerned, I hereby hold that the prosecution has not been able to prove and substantiate the recovery of the mobile phone and laptop belonging to the victim from the accused Opilmanic Khan and Satyadev Sharma. I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also are not consistent only with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused persons. The materials brought on record by the prosecution are insufficient to hold that the accused were guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, in so far as the accused namely Opilmanic Khan and Satyadev Sharma are concerned. Crucially, the material and evidence on the record do not bridge the gap between "may be true" and must be true"
so essential for a court to cross, while finding the guilty of an accused, particularly in cases based on circumstances evidence. Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Opilmanic Khan and Satyadev Sharma, beyond reasonable doubt and hence, benefit of doubt is St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 54 being given to them who are acquitted of the charges under Section 411 Indian Penal Code. Their sureties be discharged as per rules
65. Case be listed for arguments on the point of sentence qua the convicts Zakir Hussain, Zuber Khan and Gulzar for 10.5.2012.
Announced in the open court (Dr. KAMINI LAU) Dated: 3.5.2012 ASJII(NW)/ ROHINI St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 55 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Sessions Case No. 68/2011 Unique Case ID No.: 02404R0052272009 State Vs. (1) Zakir Hussain S/o Baba Khan R/o X241, Camp No.1, Nangloi, Delhi (Convicted) (2) Zuber Khan S/o Hanif Khan R/o X187, Camp No.1, Nangloi, Delhi (Convicted) (3) Gulzar S/o Mohd. Akhiyar R/o X193, Camp No.1, Nangloi, Delhi (Convicted) (4) Oppilmanic Khan S/o T. Raj Nandram R/o House No. 287, Camp No.1, Nangloi, Delhi (Acquitted) (5) Satya Dev Sharma S/o Sudesh Sharma R/o E2/361, Sultan Puri, Delhi (Acquitted) St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 56 FIR No.: 524/2008 Police Station: Shalimar Bagh Under Section: 392/397/34 Indian Penal Code Date of Judgment: 3.5.2012 Arguments heard on: 10.5.2012 Date of sentence: 15.5.2012 APPEARANCE:
Present: Sh. Sukhbir Singh, Addl. Public Prosecutor for the State.
All the three convicts namely Zakir Hussain, Zuber Khan and Gulzar are in judicial custody with Ms. Sadhna Bhatia and Sh. Ashutosh Bhardwaj Advocates.
ORDER ON SENTENCE:
Vide my detailed judgment dated, the accused Zakir Hussain has been held guilty of the offence under Section 392 Indian Penal Code whereas the accused Zuber Khan and Gulzar have been held guilty of the offence under Section 392 read with 397 Indian Penal Code. Further, the accused Opilmanic Khan @ Anna and Satyadev Sharma have been acquitted of the charge under Section 411 Indian Penal Code.
The case of the prosecution is that on 20.10.2008 the complainant/ victim Ashwani Jain was coming from Mori Gate and going to his house in his Esteem Car of golden colour bearing no. DL St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 57 ICG2580 and at about 10:00 PM when he reached near Wazirpur at T point of Ashok Vihar on Ring Road, he received a telephone of his friend on his mobile phone bearing no. 9818109400 on which he parked his vehicle by the side of the Ring Road and attended the phone of his friend. Three boys came there on the scooter and stopped their scooter near him after which two boys came near the victim, one of them snatched his mobile and pointed out an open knife on his abdomen after opening the gate of his vehicle. The person who showed the knife to the victim asked him to go to the other seat near the driving seat and at the same time, the other boy opened the back door of vehicle and entered and put an open knife on his neck. The first boy sat on the driving seat whereas he (victim) was made to sit near the driver seat after which the first boy started driving the vehicle and moved it towards Wazirpur Flyover. The boy who was sitting on the back seat removed Rs.9,500/ from the pocket of his shirt after which they stopped the vehicle on the bridge and asked him to get down whereas the boy who was on the scooter also started moving with the car. After the victim got down from the vehicle he had another mobile phone bearing No. 9312341434 in his pant pocket on which he immediately made a call at 100 number. Further, the case of the prosecution is that pursuant to their arrest the accused Oplimanic Khan @ Anna got recovered the robbed mobile phone belonging to the victim and the accused Satyadev Sharma got recovered the laptop from his shop.
St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 58
The victim Ashwani Jain had appeared in the Court and identified the accused Zakir Hussain as the person who was driving the scooter and came to him with accused Gulzar and Zuber; accused Zuber as the person who had first came to him first and opened the driver side gate and put the knife on his abdomen and snatched the mobile and asked him to sit hear the driver sea and started driving the the vehicle and accused Gulzar as the person who entered into his Esteem car from back gate and put a knife on his neck and also removed Rs.9,500/ from his pocket. On the basis of the testimony of the victim Ashwani Jain, this Court has held the accused Zakir Hussain guilty of the offence under Section 392 Indian Penal Code whereas the accused Zuber Khan and Gulzar have been held guilty of the offence under Section 392 read with 397 Indian Penal Code. However, since the prosecution has failed to connect the accused Opilmanic Khan @ Anna with the recovery of mobile phone belonging to the victim and the accused Satyadev Sharma with the recovery of HLC Laptop belonging to the victim, both the accused Opilmanic Khan @ Anna and Satyadev Sharma have been acquitted of the charge under Section 411 Indian Penal Code.
Heard arguments on the point of sentence. The convict Zakir Hussain a young boy of 25 years is totally illiterate and is a welder by profession. He has a family comprising of aged parents, wife and one St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 59 daughter. He has already remained in judicial custody in the present case for 4 years, 4 months & 10 days. He is also involved in the following cases:
1. FIR No. 322/04, PS Nangloi, under Section 25/54/59 of Arms Act.
2. FIR No.780/06, PS Nangloi, under Section 324/341/34 IPC.
3. FIR No.501/07, PS Mangolpuri, under Section 25/54/59 of Arms Act (wherein he has already been convicted).
4. FIR No. 712/07, PS Prashant Vihar, under Section 379/411 IPC.
5. FIR No. 497/07, PS Hari Nagar, under Section 356/379 IPC.
6. FIR No. 515/07, PS Hari Nagar, under Section 356/397/34 IPC.
7. FIR No. 361/07, PS Kirti Nagar, under Section 356/379 IPC.
8. FIR No. 386/07, PS Kirti Nagar, under Section 356/379/34 IPC.
9. FIR No. 516/08, PS Mangol Puri, under Section 302/ 392/ 394/ 397/411/34 IPC.
th The convict Zuber Khan a young boy of 24 years is 12 class pass and has a shop of ice. He has a family comprising of aged parents and two younger brothers. He has already remained in judicial custody in the present case for 4 years, 4 months and 10 days. He is also involved in another case bearing FIR No. 516/08, PS Mangol Puri, under Section 302/392/394/397/411/34 IPC.
The convict Gulzar a young you of 25 years is a matriculate and is a hawker by profession. He has a family comprising of aged parents, two younger brothers, two younger sisters and wife. He has St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 60 already remained in judicial custody in the present case for 3 years, 2 months and 9 days. He is also involved in another case bearing FIR No. 516/08, PS Mangol Puri, under Section 302/392/394/397/411/34 IPC.
Ld. Counsel appearing on behalf of the convicts has vehemently argued that all the convicts are young boys except for the convict Zakir Hussain, the convicts Zuber Khan and Gulzar have not been convicted in any case so far. He submits that the convict Zakir Hussain is the sole bread earner of his family whereas the convicts Zuber Khan and Gulzar are helping hands to their respective families. Ld. Counsel has also argued that the convict Gulzar was newly married when he was arrested in this case and there are liabilities of parents and families upon the convicts and there are very bright chances of their reformation in future. He requests that a lenient view be taken against the convicts.
On the other hand, the Ld. Addl. Public Prosecutor has prayed for a strict punishment to the convicts. He submits that all the convicts are hardened criminals and are involved in committing heinous crimes. He has argued that keeping in view the involvements of the convicts and the allegations involved, no leniency should be shown to them.
I have considered the rival contentions. In the recent past Delhi has experienced a spurt and rise in the incidents of snatching, robbery, dacoity, murder and other kinds of crime. In the year 2010 alone, a total number of 48,161 cases were registered out of which 567 St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 61 cases were of looting; 1,596 cases were of chain snatching and 318 cases were of dacoity. The deteriorating law and order problem of the City is a matter of serious concern and immediate steps are required to be taken at all levels for ensuring security and safety of the citizens. Under these circumstances the courts are required to find answers to the new challenges facing the society and to mould the sentencing system to meet these challenges. The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should be conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of the rime and responding to the society's cry for justice against the criminal. (Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC 175).
In the present case, all the three convicts are habitual criminals and are involved in another case bearing FIR No.516/08, PS Mangol Puri, under Section 302/392/394/397/411/34 IPC. In fact the convict Zakir Hussain has nine other involvements and he has already been convicted in FIR No.501/07, PS Mangol Puri under Section 25 Arms Act for the period already undergone. Keeping in view the criminal records of the convicts, I hold that undue sympathy shown to the convict to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society.
St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 62
I, therefore, sentenced the convict Zakir Hussain to Rigorous Imprisonment for a period of Four Years and fine to the tune of Rs.3,000/ for the offence under Section 392 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of 15 days.
The convict Zuber Khan is sentenced to Rigorous Imprisonment for a period of Seven Years and fine to the tune of Rs.5,000/ for the offence under Section 392 read with 397 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of one month.
The convict Gulzar is sentenced to Rigorous Imprisonment for a period of Seven Years and fine to the tune of Rs.5,000/ for the offence under Section 392 read with 397 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of one month.
Benefit of Section 428 Cr.P.C. shall be given to all the convicts for the period already undergone by them during the trial in the present case as per rules.
The convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 63 Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order of sentence be given to all the convicts free of costs and another copy be attached with their jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 15.5.2012 ASJII(NW)/ ROHINI
St. Vs. Zakir Hussain Etc., FIR No. 524/08, Police Station Shalimar Bagh Page No. 64