Delhi District Court
State vs Arish on 7 October, 2023
THE COURT OF VINOD KUMAR:
METROPOLITAN MAGISTRATE - 03 (CENTRAL)
TIS HAZARI COURTS: DELHI
State Vs. : Arish & Ors.
FIR No : 169/2022
U/s : 392/411 IPC
P.S. : IP Estate
JUDGMENT:
1. Criminal Case No. : 9350/2022
2. Date of commission of offence : 02.05.2022
3. Date of institution of the case : 01.07.2022
4. Name of the complainant : Ms. Navneet
5. Name of accused, parentage & : (1) Aarish S/o Sh. Mohd. Sarif
(2) Faizi @ Mohd. Sheikh Farooqi S/o
Mohd. Ahsan
6. Offense complained or proved : 392/411/34 IPC
7. Plea of the accused : Pleaded not guilty
8. Date on which order was reserved : 03.10.2023
9. Final order : Both the accused persons are acquitted
10. Date of final order : 07.10.2023
JUDGMENT
1 Both accused persons are facing trail for offences u/s 392/411/34 IPC. The
genesis of the prosecution story is that on 02.05.2022 at about 07.30 p.m. at BSZ Marg, near Gate NO. 4, Delhi within the jurisdiction of PS IP Estate both the accused in furtherance of their common intention put the complainant Navneet under the fear of causing hurt showing knife and dishonestly took away his mobile phone make Realme-5 without his consent and on 07.05.2022, the said mobile phone was recovered from the possession of accused Arish and thereby he committed an offence u/s 411 IPC also. Thereafter, the matter was reported to police and after registration of the FIR, the investigation of the case began. After completion of the investigation, FIR No. 169/2022 PS IP Estate State Vs. Arish & Ors. 1/12 VINOD Digitally signed by VINOD KUMAR KUMAR Date: 2023.10.07 17:34:25 +0530 the present charge-sheet was filed for conducting trial of both the accused persons for the alleged offences.
2. Thereafter, the cognizance of the offences was taken by the Court and on the basis of material available on record, charges for offences u/s 392/411/34 IPC were framed against accused Arish and for offences u/s 392/34 IPC was framed against accused Faizi @ Mohd. Sheikh.
3. Accused Arish admitted the fact of recording TIP proceedings dated 26.05.20222 exhibit A-1 and accused Faizi @ Mohd. Sheikh Farooqui admitted the fact of recording TIP proceedings dated 26.05.20222 already exhibit PW10/D, vide their separate statement and the witness qua such documents were dropped from the list of witness u/s 294 Cr.P.C.. The prosecution evidence was thereafter closed as the list of witnesses was exhausted.
4. After completion of prosecution evidence, statement of both the accused persons was recorded u/s 313 Cr.PC, wherein the both the accused persons have denied all the allegations qua present case and further deposed that all the PWs examined in this case have deposed falsely. It is a false case, they are innocent and have been falsely implicated in this case. Both the accused persons have denied to lead any evidence in their defence.
5. Ld. APP for State has contended that the prosecution has established the guilt of both accused persons beyond all reasonable doubts with the help of coherent testimonies of the prosecution witnesses, therefore, both the accused persons deserve to be convicted for the alleged offences.
6. Per contra, Ld. LAC for accused Arish and Ld. counsel for the accused Faizi @ Mohd. Sheikh Farooqui have contended that both accused have been falsely implicated in the present case by the complainant and police agency have acted in connivance with the complainant. It is also contended that the prosecution has also failed to establish and hence, both the accused deserve to be acquitted for the alleged FIR No. 169/2022 PS IP Estate State Vs. Arish & Ors. 2/12 VINOD Digitally signed by VINOD KUMAR Date: 2023.10.07 offences.
7. Prior to delving into the merits of contentions advanced on behalf of parties, let us briefly discuss the testimonies of the material witnesses in brief. 7.1 PW-1 is Navneet who is the complainant and deposed that he had not remembered exact date, month and year and it was about 8/9 months ago, he was residing in Subhash Gali, Vishwas Nagar, Shahdara, Delhi on rent was doing his private job in Darya Ganj and in the evening he was going to his room from his work place and when he reached near gate no. 4, Delhi Metro Station, BSZ Marg, two boys came and robbed his mobile phone make Realme by giving threat to kill with knife and the matter was reported to the police. He further deposed that he had not known the boys who robbed his mobile phone and he is unable to identify them and he had not known the accused persons present in the court.
At this stage, he was cross-examined by Ld. APP for the State as he was resiling from his statement earlier made to the police. During cross-examination by Ld. APP for the state he admitted that it was 07:00 pm on 2 nd day of May of 2022 when his mobile phone was robbed. He denied the suggestion that he had signed his statement made to the police without going through the same nor it read over by the police. He deposed that police obtained his signatures on some papers and he put his signatures on the instance of police. He denied the suggestion that he stated to the police that he could identify the both boys if they brought before him. When his supplementary statement dated 03.05.202 was shown and read over to him, he denied having ever made supplementary statement dated 03.05.2022 to the police. He denied the suggestion that he had settled the matter with accused person Arish and Faizi @ Mohd. Sheikh or that being won over by them, he was not identifying both the accused persons Arish and Faizi @ Mohd. Sheikh intentionally or deliberately. He further denied the suggestion that the accused persons Arish and Faizi @ Mohd. Sheikh are the boys who robbed his mobile phone by putting him under the threat to infected injury by knife or that he was deposing falsely.
He was cross examined as nil by Ld. Defence counsels despite grant of opportunity.
FIR No. 169/2022 PS IP Estate State Vs. Arish & Ors. 3/12
VINOD Digitally signed by
VINOD KUMAR
KUMAR Date: 2023.10.07
17:34:38 +0530
7.2 PW-2 is Ct. Rahul deposed that on that day, he alongwith PW-3 Ct. Dinesh and PW-10 IO/SI Vikram Pal went to Tis Hazari Court and PW-8 ASI Prem met them in the concerned court of P.S. Darya Ganj where PW-10 IO/SI Vikram Pal asked the facts about the arresting of the accused persons and collected documents and the accused person Arish and Faizi @ Mohd. Sheikh were interrogated by IO with the permission of court and arrested them and both accused persons Arish and Faizi @ Mohd. Sheikh made their disclosure statements.
During cross-examination by Ld. defence counsel for the accused Faizi @ Mohd. Sheikh and by Ld. LAC for accused Arish he deposed that he had not known the name of Ld. MM where the accused persons were produced. He denied the suggestion that he had not joined the investigation as stated above by him and he had not remembered as how many blank papers has signed by the accused persons at the instance of investigating officer and he had not remembered the exact time of recording of disclosure statement of accused persons. He denied the suggestion that IO had obtained his signatures just before the filing of the chargesheet or that he was deposing falsely.
7.3 PW-3 is HC Dinesh (he deposed on the same lines as PW-2) .
During cross-examination by Ld. defence counsel for the accused Faizi @ Mohd. Sheikh and by Ld. LAC for accused Arish he deposed he had not known the name of Ld. MM where the accused persons were produced and the accused persons were produced and he had not remembered as how many blank papers had signed by the accused persons at the instance of investigating officer. He denied the suggestion that he had not joined the investigation as stated above by him or that he had not unable to tell the name of Ld. MM. He further deposed that he had not remembered the exact time of recording of disclosure statement of accused persons. He denied the suggestion that IO had obtained his signatures just before the filing of the chargesheet or that he was deposing falsely.
7.4 PW-4 is Ct. Ramesh deposed that he alongwith PW-10 IO SI Vikram
FIR No. 169/2022 PS IP Estate State Vs. Arish & Ors. 4/12
VINOD Digitally signed by
VINOD KUMAR
KUMAR Date: 2023.10.07
17:34:45 +0530
and PW-2 Ct. Rahul reached at concerned court Tis Hazari where IO obtained the police custody remand of both accused Faizi @ Sheikh Farukh and Arish as the accused persons had disclosed that the stolen mobile phone may be recovered from the house of accused Arish at house and during police custody remand they all police officials with both accused persons went to the house of accused Arish and IO asked the neighbor of accused to join them but none come forward and declined for the same and the both accused persons got recovered a mobile phone realme 5 from almirah lying in the house of accused Arish and the same was taken into possession by IO and both accused persons pointed out the place of occurrence and IO recorded the supplementary disclosure statement of both accused persons.
During cross-examination by Ld. LAC for the accused Arish he admitted that at the time of recovery of mobile phone, no public person was with them. He deposed that he had not remembered his departure and arrival entry and he had not remembered the number of the family member of the accused Arish and he had not remembered how many stories, the house of accused Arish was build up and he had not remembered the time when they reached there and left the spot and he had not remembered the time when they reached the place of robbery. He denied the suggestion that he had not participated in the proceedings on the same day or that he was deposing falsely. The same cross-examination had been adopted by Ld. counsel for the accused Faizi.
7.5 PW-5 is HC Rahul (he deposed on the same lines as deposed by PW-4).
During cross-examination by Ld. LAC for the accused Arish he admitted that at the time of recovery of mobile phone, no public person was with them. He deposed that he had not remembered his departure and arrival entry and he had not remembered the number of the family member of the accused Arish and he had not remembered how many stories, the house of accused Arish was build up and he had not remembered the time when they reached there and left the spot and he had not remembered the time when they reached the place of robbery. He denied the suggestion that he had not participated in the proceedings on the same day or that he was deposing falsely. The same cross-examination had been adopted by Ld. counsel FIR No. 169/2022 PS IP Estate State Vs. Arish & Ors. 5/12 VINOD Digitally signed by VINOD KUMAR KUMAR Date: 2023.10.07 17:34:50 +0530 for the accused Faizi.
7.6 PW-6 is HC Harender Kumar deposed that on that day, PW- 1/complainant Navneet came and got recorded his statement to duty officer, who recorded the FIR and DO gave him copy of FIR, rukka and certificate u/s- evidence act for handing over to IO at spot and he reached at spot where PW-10 IO SI Vikram Paul met him and he gave the same to him and PW-1/complainant Navneet was with them and IO inspected the site at the instance of complainant and IO checked the CCTV camera but no CCTV camera was installed at spot.
During cross-examination by LD. LAC for the accused Arish he deposed that he had not remembered the number of his departure entry and IO asked the public person to join the proceedings. He denied the suggestion that he had not joined the investigation in the manner deposed by him.
During cross-examination by LD. LAC for the accused Faizi he deposed that the complainant reached at the police station at about 08:00 pm and the complainant narrated the entire story in about 10 minutes after that they all went to the spot and they remained at the spot for about 03 hours and the area where the incident took place was the densely populated area with lot of passerby at that time and they could not find anyone to join them for investigation and IO had not served any notice to the public person. He denied the suggestion that he was deposing falsely regarding the abovesaid facts or that they had not visited the spot for investigation or that he had been deposed falsely in his examination in chief as well as his statement u/s- 161 Cr.P.C.
7.7 PW-7 is Ms. Jyotsna Piuthi deposed that case file of case FIR No. 180/2022, P.S. Darya Ganj containing original FIR No. 180/2022, P.S. Darya Ganj, disclosure statement of accused Faizi @ Mohd. Sheikh Farooqui, disclosure statement of accused Arish, seizure memo of shaving safety razor (ustra), sketch of ustra(total 09 pages) qua the FIR No. 180/2022, P.S. Darya Ganj.
During cross-examination by Ld. defence counsel for the accused Faizi she admitted that she had not had any knowledge about the documents and she was FIR No. 169/2022 PS IP Estate State Vs. Arish & Ors. 6/12 VINOD Digitally signed by VINOD KUMAR KUMAR Date: 2023.10.07 17:34:56 +0530 not witness/author of these documents.
During cross-examination by Ld. LAC for the accused Arish she denied the suggestion that she had been deposing falsely.
7.8 PW-8 is ASI Prem Kumar deposed that on that day, he was posted at PS Darya Ganj as ASI. He further deposed that case FIR No. 180/2022 was registered at P.S. Darya Ganj on the complaint of Suraj Kumar and he was investigating officer of said case and the accused persons Faizi @ Mohd. Sheikh and accused Arish were arrested in case FIR No. 180/2022, P.S. Darya Ganj and the both accused persons made disclosure statement about the committing robbery of present matter. He further deposed that he recorded their disclosure statements and the razor was got recovered by the accused Arish during police custody which was taken into possession and information was given to the P.S. I.P.Estate and IO of P.S. I.P.Estate came to him and collected the photocopy of FIR No. 180/2022, P.S. Darya Ganj, disclosure statement of both accused persons, seizure memo and sketch of razor and other documents from him.
During cross-examination by Ld. LAC for the accused Arish, he deposed that no public witness was present at the time of recording of disclosure statement of accused Arish and he never visited any place with the IO of present case and except the disclosure statements made by accused persons regarding committing robbery in the present matter, he had not known anything more about the present matter. He denied the suggestion that the accused persons had not made their disclosure statements or that their signatures were obtained on blank papers, which were converted into the form of memos or that the disclosure statements of accused were recorded only to work out the matter or that he was deposing falsely.
During cross-examination by Ld. defence counsel for the accused Faize he had recorded the disclosure statement of accused Faizi at the place of occurance and the place of occurance was highly populated area surrounded by Metro Station. He admitted that the metro staff as well as the CISF staff were available but at the distance of 30 to 40 meters away or that he had not joined any private witness as well as staff of CISF. He denied the suggestion that he had obtained the signatures of FIR No. 169/2022 PS IP Estate State Vs. Arish & Ors. 7/12 VINOD Digitally signed by VINOD KUMAR KUMAR Date: 2023.10.07 17:35:01 +0530 accused Faizi at the blank papers or that the same were utilized for disclosure statement of accused Faizi or that accused Faizi had not made any disclosure statement about the present case or that he was deposing falsely of his part of cross examination.
7.9 PW-9 is ASI Om Prakash is the DO who deposed that on 03.05.2022, the rukka was received through PW-10/SI Vikram Pal, on the basis of which the FIR No.169/2022 was registered to the offences under Section 392/34 IPC on computer installed in DO room, which was kept in the safe custody and supervision of SHO and there was no chance of any type of tampering in the contents feed in the computer system and after registration of FIR, the copy of the FIR was retained in the PS as record and one copy of FIR alongwith original rukka duly endorsed by him and certificate under Section 65B Evidence Act were handed over to SI Vikram Pal to whom, the investigation was marked and he had brought the register of FIR.
During cross-examination by Ld. LAC for the accused Arish he denied the suggestion that the FIR was ante date and time.
During cross-examination by Ld. counsel he deposed that he had no idea how to operate the computer. He admitted that exhibit PW9/A is computerized or that in a computer a computer operator could edit the contents. He deposed that the investigating officer had appoinated by the person who prepared the tehrir. He denied the suggestionn that in the present case the investigating officer was appointed wrongly. He admitted that he had not known about the contents of exhibit PW9/A or that the document exhibit PW9/A was prepared by computer operator in his presence. He denied the suggestion that the FIR was ante date and time or that he was not competent to give certificate u/s- 65 B Evidence Act.
7.10 PW-10 is SI Vikram Paul deposed that on that day, he was on night emergency duty and PW-1/complainant Navneet had come and got recorded his statement to duty officer, who recorded the FIR and Duty officer directed him to go at spot and to take appropriate action and he alongwith complainant and PW-6 HC Harender went to spot and he inspected the same and he checked the CCTV cameras FIR No. 169/2022 PS IP Estate State Vs. Arish & Ors. 8/12 VINOD Digitally signed by VINOD KUMAR KUMAR Date: 2023.10.07 17:35:07 +0530 installed nearby the spot and nothing incriminate was found in CCTV footage and efforts were made to trace the accused persons but they could not be trace out and site plan was prepared and he recorded the statement of witnesses and the information was received from the P.S. Darya Ganj about the arresting of accused persons Arish and Faizi who made their disclosure statement about committing the robbery of present matter and he contacted the IO of the P.S. Darya Ganj and on 03.05.2022, both accused persons were produced before concerned court of P.S. Darya Ganj and he alongwith PW-2 HC Rahul and PW-3 Ct. Dinesh went to the concerned court, the accused persons Arish and Faizi were produced and he interrogated them with the permission of court and he collected the documents of IO and he arrested the accused with the permission of court and the both accused persons were kept in muffled face. He further deposed that both accused persons were interrogated and they made their disclosure statement and both accused persons were remanded to JC and 06.05.2022, he moved an application for taking PC remand of both accused persons by way of application and the concerned court allowed one day PC of the both accused persons and the both accused persons were again interrogated in detail and that time they made their supplementary disclosure statement and the both accused persons pointed out the place of occurrence and the accused Arish got recovered the robbed mobile phone from his house and thereafter, the both accused persons were got medically examined and remanded to JC and he moved an application for the TIP of both accused persons and the TIP of both accused persons were got conducted and he collected the copy of TIP proceedings and the attested copy of the TIP proceedings of both accused persons and the accused Arish was correctly identified by the witness during TIP but the accused Faizi could not be identified by the witness and thereafter, the complainant made his supplementary statement regarding the identification of the accused Faizi stating that he had seen accused Faizi in the court when he was producing before the concerned court and he recorded the statement of witnesses and the photocopy of the document prepared by IO of P.S. Daryaganj i.e. disclosure statement of accused persons etc. were placed on record and during investigation it was revealed that the razor recovered by the IO of P.S. Darya Ganj from accused persons was used by them in committing robbery of the present matter as well as in FIR No. 169/2022 PS IP Estate State Vs. Arish & Ors. 9/12 VINOD Digitally signed by VINOD KUMAR KUMAR Date: 2023.10.07 17:35:11 +0530 the case of P.S. Darya Ganj, so that he could not received it from Malkhana of P.S. Darya Ganj and he recorded the statement of witnesses and after completion of investigation chargesheet was filed.
During cross-examination by Ld. defence counsel for the accused Faizi he deposed that the complainant came to him at about 08:15 pm to 08:30 pm and he had not remembered the time of lodging of FIR. He denied the suggestion that he was not able to give the time of registration of FIR as he had not conducted investigation as stated by him in his examination in chief. He deposed that the duty officer of the P.S. I.P.Estate was appointed him as investigation officer of this case. He admitted that area of P.S. Chandni Mahal was not fall in the area of P.S. I.P.Estate or that the area of P.S. Chandni Mahal fall under the area of P.S, I.P.Esate. He deposed that he had not gone to the area of Chandni Mahal on 03.05.2022 and he had taken the PC of the accused persons prior to given application for TIP and he had not made any arrival entry at P.S. Chandni Mahal and when he reached at the house of accused Arish alongwith the accused persons the house of accused Arish was opened and no male or female person present in the house. He admitted that the house of accused Arish was surrounded with highly populated area. He further deposed that he had requested the neighbors of house of the accused Arish but they were not agree to join the investigation and he had not issued any notice to them due to shortage of time. He further deposed that he had not remembered the house number and floor of accused Arish. He denied the suggestion that he had not gone in the area of P.S. Chandni Mahal so that he was unable to give the particulars of the house of accused Arish. He further deposd that he had not collected the fingure prints of the mobile phone before making the pullanda. He denied the suggestion that noting was recovered from the possession of accused Arish or the same was planted one. He further deposed that he had not provided the copy of the seizure memo to the accused Arish and the SHO P.S. Chandni Mahal. He dennied the suggestion that noting was recovered as stated by accused Arish as well SHO Chandni Mahal. He deposed that he had not call the complainant at the arrest of accused Arish and Faizi. He denied the suggestion that he had call the complainant at the time of arrest of accused Arish and Faizi or that he had shown the accused persons to the complainant at that time or that at that time FIR No. 169/2022 PS IP Estate State Vs. Arish & Ors. 10/12 VINOD Digitally signed by VINOD KUMAR KUMAR Date: 2023.10.07 17:35:18 +0530 complainant after seen the accused persons the complainant saying that they were not the same accused persons or that he had snapped the so many photographs of accused persons to shown the complainant or that he had prepared all documents to falsely implicate the accused persons. The same cross had been adopted by Ld. LAC for the accused Arish.
This is the entire evidence on case record.
8. I have heard the rival contentions advanced by the prosecution and defence and have also gone through the case record carefully. Having discussed the testimonies of the prosecution witnesses, now let us advert ourselves to the merits of the contentions advanced on behalf of the parties.
In the present matter, PW-1/complainant Sh. Navneet is sole independent eye witness of incident and he is the star witness but during deposition, he completely turned hostile and during examination he failed to identify both the accused persons. This witness did not support the case of prosecution on the aspect of identification of the accused persons and on the aspect of commission of offence of robbery u/s 392 IPC. He denied the fact of seeing the accused persons actually committing the alleged offences of robbery u/s 392 IPC. He denied making the supplementary statement dated 03.05.2022 to the police thus the identity of the accused persons could not be authenticated. In these circumstances, there is nothing on record to associate the accused persons with alleged incident of robbery u/s 392 Cr.PC and as such nothing incriminating against the accused persons could be elicited from the testimony of PW-1/complainant Sh. Navneet.
9. Perusal of records show that the recovery of stolen mobile phone make Realme-05 of complainant PW-1 Navneet was effected at the instance of accused Arish from his house no. 2386, Gali Chandiwali, Tukman Gate, Delhi in pursuance of his disclosure statement. The accused Arish also faced the trial for the offence u/s 411 IPC also qua the fact of recovery of stolen mobile phone from his house. The record also shows that the independent public persons were not asked by the investing agency at the time of effecting recovery of recovery mobile phone of Realme despite FIR No. 169/2022 PS IP Estate State Vs. Arish & Ors. 11/12 VINOD Digitally signed by VINOD KUMAR KUMAR Date: 2023.10.07 17:35:23 +0530 availability nor the family members of the accused was asked to join the same, reason best known to the investigating agency. As per the provision of section 100(4) Cr.PC, the habitant of the place recovery are required to join the proceedings but record shows that no efforts have been made by the investigating agency to do so.
10. The other PWs are formal in nature as they only associated in the investigation but not are eyewitness of the incident and they have not deposed any word regarding the commission of alleged offences.
11. Furthermore, it has been held by Hon'ble Supreme Court in Dr. S.L. Goswami Vs. State of Madhya Pradesh 1972 SCC (CRI.) 258 that the accused is entitled to benefit of doubts where the onus of proving ingredients of the offences is not discharged by the prosecution. In the present case, as already noted above, the prosecution has failed to discharge the onus of proving the ingredients of the offences, thus, the accused is entitled to benefit of doubts. therefore, the accused also deserves to be acquitted for offences u/s 356/379/411 IPC.
12. In view of the above discussion, since, nothing incriminating has come on record against the accused persons, therefore, accused Arish is acquitted for offences u/s 392/411/34 IPC and Faizi @ Mohd. Sheikh is acquitted for offences u/s 392/34 IPC.
13. The bail bonds, if any furnished by both the accused persons at the time of commencement of trial stands canceled. Surety, if any stands discharged. Documents, if any shall be returned to its rightful owner as per rules. Endorsement, if any stands canceled. Case property if any, shall be disposed off after expiration of period to assail this judgment and in case of appeal, as per the directions of Ld. Appellate Court. Case file be consigned to record room after due compliance.
VINOD Digitally signed by VINOD
KUMAR
Announced in the open court KUMAR Date: 2023.10.07 17:35:30
+0530
on 07th day of Oct, 2023 (VINOD KUMAR)
MM-03(Central),THC,Delhi
FIR No. 169/2022 PS IP Estate State Vs. Arish & Ors. 12/12