Delhi District Court
State vs Naseem And Anr on 4 March, 2024
IN THE COURT OF SH. AKASH JAIN
ADDITIONAL SESSIONS JUDGE-04
EAST DISTRICT, KARKARDOOMA COURTS: DELHI
CNR No:- DLET-01-008406-2019
State v. Naseem Etc.
FIR No. : 1027/14
Police Station : Kalyanpuri
Under Section : 392/397/411/34 IPC & 25 Arms Act
(a) Serial number of the case : 3477/19
(b) Name of the complainant : Sh. Sachin Dobriyal
S/o Sh. R. P. Dobriyal
(c) Name of the accused : (1) Naseem
person (s) S/o Sh. Shekh Sikander
R/o 4/372, Trilok Puri, Delhi
(2) Shannu @ Shahrukh
S/o Sh. Kamaal Ahmed
R/o 13/397, Kalyanpuri, Delhi
(3) Aditya @ Bhalu
S/o Sh. Manoj Kumar
R/o 1/223, , Trilok Puri, Delhi
(d) Offences complained of : 392/397/411/34 IPC &
25 Arms Act
(e) Plea of the accused : Pleaded not guilty
(f) Date of institution of case : 25.04.2019
(g) Date of final arguments : 06.02.2024
(h) Date of Judgment : 04.03.2024
(i) Final Judgment : All accused persons are
acquitted.
Digitally signed
AKASH by AKASH JAIN
Date:
JAIN 2024.03.04
17:51:46 +0530
FIR No:- 1027/14 State v. Naseem & Ors. Page No. 1 of 12
JUDGMENT
1. In the present case, charge sheet was filed by the State under Sections 392/397/411/34 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and under Section 25 Arms Act against accused persons namely, Naseem, Shannu @ Shahrukh and Aditya @ Bhalu on 25.04.2019.
2. The case of prosecution, in brief, is that on 11.11.2014 at about 07:00 PM at Bus Stand Chand Cinema, Kalyanpuri all accused persons in furtherance of their common intention committed robbery of a mobile phone, wallet containing Rs.10,000/- and other documents from Sh. Sachin Dobiyal (hereinafter referred to as 'complainant'). It is further the case of prosecution that while committing the said offence, accused Aditya @ Bhalu used deadly weapon i.e. a button actuated knife and was later on found in its possession, accused Shannu @ Shahrukh was found in possession of robbed mobile phone and accused Naseem was also found in possession of robbed bag of black and blue colour belonging to the complainant.
Factual Matrix
3. As per the charge-sheet, the present case was got registered at the instance of complainant Sachin Dobriyal, who stated that on 11.11.2014 at around 07:00 PM, when he was standing at Bus stand of Chand Cinema and waiting for the bus, suddenly 2-3 boys came from his back side and out of the said boys, one boy pressed his neck, while other boy put knife on his neck. Complainant stated that the third boy took out wallet from his pants. He further stated that his bag and mobile were also AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.03.04 17:52:06 +0530 FIR No:- 1027/14 State v. Naseem & Ors. Page No. 2 of 12 snatched by those boys who later on ran away from the spot. He stated that his bag was containing Rs. 10,000/-, PAN card, driving licence, RC of motor-cycle, documents of insurance, pollution and ATM card of SBI bank.
4. The investigation of the case was handed over to ASI Lakhi Ram, the investigation officer (hereinafter referred to as 'IO'). During investigation, IO recorded the statement of complainant and also recorded the disclosure statement of accused persons and arrested them in the present case.
5. Upon completion of investigation, charge sheet under Section 173 Cr.PC was filed against the accused persons namely, Naseem, Shannu @ Shahrukh and Aditya @ Bhalu under Sections 392/397/411/34 IPC and under Section 25 Arms Act. After statutory compliance, present case was committed to the Court of Sessions and assigned to this Court by the order of Ld. Principal District & Sessions Judge, East District, Karkardooma Courts, Delhi.
Charge
6. Vide order dated 05.07.2022 all accused persons were formally charged for commission of offences under Section 392/397/411/34 IPC and 25 Arms Act, to which they pleaded not guilty and claimed trial.
Prosecution Evidence
7. In order to prove its case prosecution examined as many as 4 witnesses. PW-1 is ASI Yatvir Singh who deposed that AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.03.04 17:52:13 +0530 FIR No:- 1027/14 State v. Naseem & Ors. Page No. 3 of 12 on 11.11.2014, he was posted as Duty Officer at Police Station Kalyan Puri. He received a PCR call vide DD No. 21-A at about 07:18 PM as Ex. PW 1/A. Thereafter, on receipt of rukka from Constable Asif sent by HC Satbir, he recorded FIR No. 1027/2014 and proved the same vide Ex. PW 1/B (OSR). After registration of the FIR, he made endorsement on the rukka vide Ex. PW 1/C and handed over the copy of FIR and original rukka to Ct. Asif to be given to IO/ ASI Lakhi Singh. PW-1 also proved certificate under Section 65-B of Indian Evidence Act as Ex. PW 1/D.
8. PW-2 is HC Aasif Khan, who deposed that on 11.11.2014, he reached near Chand Cinema, Bus Stop and met with IO/HC Satbir, complainant Sachin Dobriyal who told him the facts regarding the present case and at around 8:00 PM, IO HC Satbir gave him the rukka and complaint of the present case and sent him to the Police Station Kalyan Puri for registration of the FIR. Thereafter, he went to the Police Station Kalyan Puri and handed over the complaint and original rukka to HC Yatvir, Duty Officer to register the FIR of the present case. He deposed that investigation in the present case was marked to ASI Lakhi Singh and he handed over the copy of FIR, complaint and rukka to ASI Lakhi Singh. PW-2 further deposed that on 12.11.2014, when he was present in the police station, complainant came to the police station and met with the IO and thereafter, IO prepared a team including himself, Ct. Upender and complainant Sachin Dobriyal and also shared the information and the facts to the team. Thereafter, he along with the aforesaid team members went to Kalyan Puri, Terminal by police vehicle where accused persons were found at Kalyan Puri, Terminal. At the instance of AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.03.04 17:52:23 +0530 FIR No:- 1027/14 State v. Naseem & Ors. Page No. 4 of 12 complainant, accused persons were apprehended by the team and their personal search was also conducted. In the personal search of accused Aditya @ Bhalu, one knife was recovered having total length of 19 cm, length of blade being 7 cm, length of handle being 12 cm, which was seized by the IO vide seizure memo Ex. PW2/A and sketch of the same is Ex.PW2/B. PW-2 correctly identified case property i.e. one knife of steel metal having red stripes on handle, which was recovered from accused Aditya @ Bhalu as Ex.P1.
9. PW-2 deposed that IO conducted the personal search of accused Shahrukh @ Shannu from whom one mobile make Micromax was recovered and same was seized by the IO and he proved the same vide seizure memo Ex.PW2/C. PW-2 correctly identified the case property i.e. mobile phone vide Ex. P2. PW-2 further deposed that IO also conducted the personal search of accused Naseem, however nothing was recovered from his possession. Thereafter, IO interrogated all the three accused persons and arrested them vide Ex.PW2/D, Ex.PW2/F and Ex.PW2/H respectively and also conducted their personal search vide Ex. PW2/E, Ex.PW2/G and Ex.PW2/I respectively. IO also recorded the disclosure statements of accused Aditya @ Bhalu, accused Naseem and accused Shahrukh @ Shanu vide Ex. PW 2/L, Ex. PW 2/M and Ex. PW 2/M respectively. Accused Naseem in his disclosure statement disclosed that the robbed bag was present inside the deewan at his house. Thereafter, PW-2 along with all the three accused persons and the team went to the house of accused Naseem at house no. 4/372, Trilok Puri near Masjid from where at the instance of accused Naseem, robbed bag of AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.03.04 17:52:37 +0530 FIR No:- 1027/14 State v. Naseem & Ors. Page No. 5 of 12 make Reebok of black and blue colour was recovered and on search a receipt of Golden Palm Hotel was also found inside it and same was identified by the complainant. PW-2 further deposed that IO seized the same in a white cloth and sealed it with the seal of LS which was proved vide Ex. PW 2/J. The said bag and receipt were correctly identified by the witness as Ex. P3 (colly).
10. PW-2 deposed that thereafter he along with the IO, team of police officials and all the three accused persons went to the spot i.e Chand Cinema Bus Stop and at the instance of accused persons, IO prepared the instance memo of the spot vide Ex.PW2/K. Thereafter complete team and the accused persons went to the LBS Hospital where accused persons were medically examined. PW-2 correctly identified all the accused persons during his testimony.
11. PW-3 is HC Upender Sagar who was one of the member in the raiding team with IO and PW-2 HC Aasif Khan. He deposed on the same lines as that of PW-2 and correctly identified all the accused persons as well as case properties.
12. PW-4 is SI Vipin Kumar who deposed that on 01.05.2017, the investigation of the present case was marked to him. He further deposed that after receipt of case file from MHCR and after perusing the same, he prepared the charge-sheet and submitted the same before the Court.
Digitally signed by AKASH JAINAKASH Date:
JAIN 2024.03.04
17:52:46
+0530
FIR No:- 1027/14 State v. Naseem & Ors. Page No. 6 of 12
13. Perusal of the record shows that during pendency of the proceedings summons issued to complainant/ PW Sachin Dobriyal received back with the report that witness had already died on 09.08.2017. Copy of his death certificate was also placed on record, as such, PW Sachin Dobriyal/ complainant was dropped from the list of witnesses by Ld. Predecessor Court. Similarly, PW HC Satbir Singh/ IO and PW ASI Lakhi Ram/ 2 nd IO also could not be examined as they reportedly died during the proceedings of the present case and accordingly, both of them were also dropped from the list of witnesses by Ld. Predecessor Court vide order dated 07.07.2023 and 28.08.2023 respectively.
Statement of accused
14. Thereafter, prosecution evidence was closed and the matter was fixed for recording of statement of accused persons. Statement of all accused persons under Section 313 was recorded on 10.10.2023 wherein incriminating circumstances were put to the accused persons which they denied. All the accused stated that they were falsely implicated in this case and all the alleged recoveries were planted on them. Accused persons failed to lead any defence evidence in their favour.
Final Arguments
15. The matter then proceeded for final arguments. Final arguments were heard on behalf of Ld. Addl. PP for the State and both the accused. I have carefully gone through the record.
Digitally signed by AKASH JAINAKASH Date:
JAIN 2024.03.04
17:52:59
+0530
FIR No:- 1027/14 State v. Naseem & Ors. Page No. 7 of 12
Analysis and Findings
16. It is well settled that in a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. Now, it is the case of prosecution that on 11.11.2014 at about 07:00 PM at Bus Stand Chand Cinema, Kalyanpuri all accused persons in furtherance of their common intention committed robbery of a mobile phone, wallet containing Rs. 10,000/- and other documents from the complainant and while committing the said offence, Aditya @ Bhalu used deadly weapon i.e. a button actuated knife. However, the complainant in the present case namely, Sachin Dobriyal died prior to filing of charge-sheet and as such, could not be examined during trial. No other single eye witness was named in the list of witnesses, who could prove the commission of alleged offence of robbery in question. In the absence of testimony of complainant and other eye-witnesses to the incident, the factum of alleged robbery by accused persons on 11.11.2014 could not be established by the prosecution beyond reasonable doubt.
17. So far as recovery of stolen mobile phone, bag and knife is concerned, there are glaring lapses in the case of prosecution in as much as no independent public witness was joined during entire investigation by the police at the time of apprehension of accused persons and alleged recovery of mobile phone as well as bag. The place from which the accused persons were allegedly apprehended by the police was admittedly a thickly populated area, yet not a single public witness was joined by the police during investigation raising cloud of doubtDigitally oversigned said AKASH by AKASH JAIN JAIN Date: 2024.03.04 17:53:40 +0530 FIR No:- 1027/14 State v. Naseem & Ors. Page No. 8 of 12 recoveries. The IO could have taken recourse to Section 187 IPC, if no public person agreed to join the investigation, but neither any notice in writing was served by the IO nor any action was taken by him under Section 187 IPC casting shadow upon the case of prosecution. In the case of Anoop Joshi v. State, 1992 (2) C.C. Cases 314 (HC), Hon'ble Delhi High Court was pleased to observe as under:-
".... It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop−keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC...."
18. Also, in the case of Roop Chand v. The State of Haryana, 1999 (1) C.L.R. 69, Hon'ble Punjab & Haryana High Court held that:-
".... It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.03.04 17:53:48 +0530 FIR No:- 1027/14 State v. Naseem & Ors. Page No. 9 of 12 the fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non−joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make prosecution case highly doubtful...."
19. None of the police witnesses examined by the prosecution could prove departure entry vide which they allegedly left the Police Station on 12.11.2014 to apprehend the accused persons. There is further nothing on record that after apprehension of the accused but before conducting their casual search, the police officials concerned offered their own search to the accused persons. This is again a serious lapse raising cloud of doubt on the alleged recovery. I find support from the case of Rabindernath Prusty v. State of Orissa, 1984 Cri LJ 1392, wherein it was observed as under:-
".... The next part of the prosecution case is relating to the search and recovery of Rs.500/− from the accused. One of the formalities that has to be observed in searching a person in that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 : 1969 Cri. L.J 279, State of Bihar vs. Kapil Singh). This rule is meant to avoid the possibility of implanting the object which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their personal search to the accused before the latter's person was searched. Besides the above, it is in the evidence of PWs 2 and 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search was not intimated to the accused. No independent witness had witnessed the search. In the above premises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated...."Digitally signed by AKASH JAIN
AKASH Date:
JAIN 2024.03.04
17:53:56
+0530
FIR No:- 1027/14 State v. Naseem & Ors. Page No. 10 of 12
20. It has come during the cross-examination of PW-2 Aasif Khan and PW-3 Upender Sagar that the seal of 'LS' after sealing the case property i.e. bag belonging to complainant, was given to IO. Therefore, it is clear that the seal was not handed over to any independent public person after its use and tampering with the case property i.e. bag in such a situation cannot be ruled out. In the case of Rajesh Jagdamba Awasthi v. State of Goa, (2005) 9 SCC 773, it was held by Hon'ble Supreme Court of India that:-
".... In these circumstances, there is justification for the argument that since the seal as well as the packets were in the custody of the same person; there was every possibility of the seized substance being tampered with, and that is the only hypothesis on which the discrepancy in weight can be explained. The least that can be said in the facts of the case is that there is serious doubt about the truthfulness of the prosecution case...."
21. In the absence of testimony of complainant as well as both the IOs besides multiple lapses in the investigation as pointed above, it is thus, not safe to conclude beyond reasonable doubt that accused persons had robbed the complainant of his mobile phone and bag on the fateful day of 11.11.2014 or that the alleged recoveries of mobile phone, bag and knife were effected from the accused persons, as alleged.
Conclusion
22. Keeping in view the totality of facts, circumstances and observations as above, accused no. 1 Naseem S/o Shekh Sikander, accused no. 2 Shannu @ Shahrukh S/o Sh. Kamaal Ahmed and accused no. 3 Aditya @ Bhalu S/o Sh. Manoj Kumar are acquitted of the offences under Sections 392/397/411/34 IPC AKASH Digitally AKASH JAIN signed by JAIN Date: 2024.03.04 17:54:15 +0530 FIR No:- 1027/14 State v. Naseem & Ors. Page No. 11 of 12 and under Section 25 of Arms Act. Personal bond furnished by accused no. 1 Naseem and accused no. 2 Shannu @ Shahrukh and bail bond furnished by accused no. 3 Aditya @ Bhalu under Section 437-A Cr.P.C. are extended for a period of 6 months from today.
23. File be consigned to record room after due compliance.
Digitally signedAKASH by AKASH JAIN Date:
JAIN 2024.03.04 17:54:52 +0530 ANNOUNCED IN OPEN (AKASH JAIN) COURT ON 04.03.2024 ASJ-04, EAST DISTRICT KARKARDOOMA COURTS DELHI This judgment contains 12 pages and each paper is signed by me.Digitally signed by AKASH JAIN
AKASH Date:
JAIN 2024.03.04
17:55:03
+0530
(AKASH JAIN)
ASJ-04, EAST DISTRICT
KARKARDOOMA COURTS
DELHI
FIR No:- 1027/14 State v. Naseem & Ors. Page No. 12 of 12