Delhi District Court
State vs 1. Waseem (On Bail) on 10 July, 2015
IN THE COURT OF SH. SANJAY SHARMA : SPECIAL JUDGE (NDPS) / ADDL. SESSIONS JUDGE, (NORTH-EAST): KARKARDOOMA COURTS, DELHI SC No. : 26(I)/12 FIR No. : 238/11 PS : New Usmanpur U/Sec. : 392/397/411/34 IPC Case ID : 02402R0350772011 State Versus 1. Waseem (on bail) S/o Sh. Asgar Ali R/o Permanent Address: Village Kasampur, PS Chappar, District Muzaffar Nagar, U.P. Present Address: Village Rasulpur, PS Gulawati Buland Shahar, U.P. 2. Faimuddin @ Pauna (in JC) S/o Sh. Shahbuddin R/o Mohalla Nihariyan, Akhada Wali Gali, Lal Kuan, Delhi-6 Date of Institution : 23.11.2011 Date of reserving order : 03.07.2015 Date of Judgment : 10.07.2015 JUDGMENT
1. On 04.07.2011 at 3.00 p.m., PW-4 Daulat Ram with PW-3 Shamsher Singh were going to deposit collection money of Rs.1,59,000/- belonging to Gopi Service Station, near Ambedkar College, Gokal Puri, Delhi in the Oriental Commerce Bank at Roshanara Road, Sabzi Mandi, Delhi which was kept in a bag in dickey of Scooter No. DL 4 S BF 4878.
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2. When PW-4 Daulat Ram with PW-3 Shamsher Singh reached in front of Shastri Park Metro Station, two boys came on a black Pulsar motorcycle and signalled him to stop the scooter and in the meanwhile, some boys came on three motorcycles. The rider of the Pulsar motorcycle asked them to turn their face otherwise he would shoot them. The said boys were carrying arms. PW-4 Daulat Ram and PW-3 Shamsher Singh got frightened and turned their face. One of them got down from the motorcycle and started the scooter and taken it towards ISBT, Kashmere Gate. PW-4 Daulat Ram made a call at 100 number.
3. On 04.07.2011 at 3.30 p.m., PW-6 HC Narender, DD Writer, PS New Usmanpur received a wireless message from Police Control Room (PCR) that eight boys came on four motorcycles at Shastri Park, Metro Station and they fled towards ISBT, Kashmere Gate after snatching Scooter No. DL 4 S BF 4878 Eterno black colour, Ph. No. 9717878130. He reduced the said information into writing vide DD No. 19A Ex.PW6/A and PW-8 HC Jag Pal was informed about the said DD who alongwith PW-11 Ct. Ravinder proceeded towards the place of incident.
4. PW-8 HC Jag Pal Singh with PW-11 Ct. Ravinder reached in front of Shastri Park Metro Station where he met PW-4 Daulat Ram/complainant and PW-3 Shamsher Singh. PW-4 Daulat Ram made a complaint Ex.PW4/A to PW-8 HC Jag Pal Singh.
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5. PW-8 HC Jag Pal Singh prepared rukka Ex.PW8/A and sent it to PS-New Usmanpur for registration of FIR through PW-11 Ct. Ravinder. On receipt of rukka, PW-5 HC Narayan Singh, Duty Officer recorded FIR No. 238/2011 at 4.50 p.m. on 04.07.2011 in PS-New Usmanpur. Further investigation of the case was assigned to PW-13 Inspector Virender Singh and FIR Ex.PW5/A was sent to PW-13 Inspector Virender Singh through PW-11 Ct. Ravinder.
6. At 5.00 p.m., PW-13 Inspector Virender Singh reached at the place of incident and met PW-4 Daulat Ram, PW-3 Shamsher Singh and PW-8 HC Jagpal. He inspected the place of incident and prepared the site plan of the place of incident Ex.PW13/A. He received an information regarding parking of the said scooter near Nigam Bodh Ghat, Street Light, PWD-24 at Ring Road. Thereafter, he alongwith the complainant reached at the said place and found that the said scooter in abandoned condition. He seized the scooter vide seizure memo Ex.PW3/A. He called the crime team. The crime team inspected the scooter but chance prints could not be obtained. On checking the dicky of the said scooter, the bag containing collection money of Rs. 1,59,000/- and other documents was not found there. He prepared the site plan of the place of recovery of the scooter Ex.PW13/B and recorded statement of witnesses. He deposited the scooter in police malkhana. The said scooter was released to PW-2 Sh. Gopi Nath, owner of Gopi Service Station vide Bond Ex.PW2/A. FIR No. 238/11 State Vs. Waseem & Ors. Page No. 3 of 16
7. On 14.08.2011, the accused Mohd. Asif was arrested by PS Jafrabad in case FIR No. 247/11 and in his disclosure statement, he disclosed his involvement in the present case. On receipt of the information regarding arrest of the accused Mohd. Asif vide DD No. 7A Ex.PW13/C, PW-13 Inspector Virender Singh arrested the accused Mohd. Asif vide arrest memo Ex.PW13/D and recorded his disclosure statement Ex.PW13/E. He moved an application for Test Identification Parade (TIP) of the accused Mohd. Asif. However, the accused Asif could not be identified in TIP proceedings and therefore, he was discharged from this case on 25.08.2011.
8. On 17.09.2011, PW-12 SI Gopi Chand, PS Sahibabad, Ghaziabad, U.P. arrested the accused Waseem in FIR No. 915/11 under section 307 IPC and in his disclosure statement, he disclosed that he alongwith Faimuddin, Mahender @ Fauji and Pintu committed the present offence. On receipt of the information, PW-13 Insp. Virender Singh moved an application for production of the accused Waseem Ex.PW13/G. On 23.09.2011, the accused Waseem was produced before the Court of Ld. Metropolitan Magistrate in muffled face. After seeking permission of the Court, PW-13 Insp. Virender Singh arrested the accused Waseem vide arrest memo Ex.PW13/J. During interrogation, he made a disclosure statement Ex.PW7/A that he can get the robbed amount and bag recovered from the almirah of his house. He refused to participate in the TIP proceedings vide Ex.PW10/B. FIR No. 238/11 State Vs. Waseem & Ors. Page No. 4 of 16
9. On 24.09.2011, PW-13 Insp. Virender Singh with PW-7 HC Ram Naresh and the accused Waseem reached at his H. No. 77, Vikram Enclave, Sahibabad, District Ghaziabad and the accused Waseem led PW-13 Insp. Virender Singh to an almirah in the room on the first floor of his house and got recovered one green colour bag containing 30 currency notes of the denomination of Rs. 50 each and other documents which he kept in a cloth parcel which was sealed with his seal having impression 'VS' and seal after use was handed over to PW-7 HC Ram Naresh. He seized the said bag and other articles vide seizure memo Ex.PW7/D. He deposited the recovered articles in police malkhana.
10. During investigation, PW-13 Insp. Virender Singh came to know that the accused Mahender was in jail in FIR No. 426/02, PS Gokalpuri and therefore, he moved an application for his production Ex.PW13/L on 12.10.2011. After seeking permission of the Court, he arrested the accused Mahender vide arrest memo Ex.PW13/M and recorded his disclosure statement Ex.PW13/N. However, in Test Identification Parade (TIP), the accused Mahender was not identified and therefore, he was discharged from this case.
11. During investigation, PW-13 Insp. Virender Singh made efforts to trace the accused Faimuddin but he could not trace him. Therefore, after issuance of proclamation under section 82 of the Cr.P.C., the accused Faimuddin was declared a proclaimed offender on 11.01.2012.
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12. On 12.10.2012, PW-13 Insp. Virender Singh moved an application for TIP of the recovered bag Ex.PW9/A. In TIP proceedings conducted by PW-9 Sh. Vivek Kumar Gulia, Ld. MM, Karkardooma Courts, Delhi, PW-4 Daulat Ram identified the recovered bag Ex.P1 vide Ex.PW4/A1. The articles recovered at the instance of the accused Waseem are sum of Rs.15,000/- i.e. 30 notes of 50 rupees each bearing slip of Oriental Bank of Commerce Ex.P2, one deposit slip of Oriental Bank of Commerce dated 04.07.2011 Ex.P3, one photocopy of letterhead of Gopi Service Station Ex.P4, two slips of Oriental Bank of Commerce dated 19.05.2011 and 21.05.2011 Ex.P5A & Ex.P5A1, one photocopy of cheque bearing no. 342695 of Oriental Bank of Commerce Ex.P6, one photocopy of letter from Oriental Bank of Commerce Ex.P7 and two slips of Oriental Bank of Commerce Ex.P8A & Ex.P8A1 which were seized by PW-13 Inspector Virender Singh vide seizure memo Ex.PW7/D.
13. PW-13 Insp. Virender Singh submitted charge-sheet against the accused Waseem.
14. On 25.09.2013, the accused Faimuddin @ Pauna was arrested by PW-17 SI Vinay Pal in FIR No. 39/13 under section 186/353/307 IPC and 25/27 Arms Act, PS Special Cell, Lodhi Colony. During interrogation, he made a disclosure statement Ex.PW17/A regarding his involvement in the present case. He informed PS New Usmanpur regarding arrest of the accused Faimuddin @ Pauna vide DD No. 36B Ex.PW15/A. FIR No. 238/11 State Vs. Waseem & Ors. Page No. 6 of 16
15. PW-15 SI Dharmender moved an application for issuance of production warrant in respect of the accused Faimuddin @ Pauna vide Ex.PW15/B. On 03.10.2013, he arrested the accused Faimuddin @ Pauna after seeking permission of the Court vide arrest memo Ex.PW15/D. He moved an application for Test Identification Parade (TIP) of the accused Faimuddin @ Pauna vide Ex.PW15/E. The accused Faimuddin @ Pauna refused to participate in the Test Identification Parade (TIP) vide TIP Proceedings Ex.PW16/C.
16. On completion of investigation, PW-15 SI Dharmender submitted charge-sheet against the accused Faimuddin @ Pauna.
17. In due course, the case was committed to the Court of Sessions.
18. The accused Waseem was charged under section 395, 397 and 412 IPC to which he pleaded not guilty and claimed trial.
19. The accused Faimuddin @ Pauna was charged under section 395, 397 and 174-A IPC to which he pleaded not guilty and claimed trial.
20. During the course of evidence, the prosecution examined 17 witnesses as under:-
The witnesses Description of the witnesses PW-1 Saurabh Goyal Manager, Gopi Service Station PW-2 Gopi Nath Owner, Gopi Service Station PW-3 Shemsher Singh Accompanied complainant PW-4 Daulat Ram Complainant FIR No. 238/11 State Vs. Waseem & Ors. Page No. 7 of 16 PW-5 HC Narayan Singh Duty Officer, PS New Usmanpur PW-6 HC Narender DD Writer, PS New Usmanpur PW-7 HC Ram Naresh Accompanied IO Insp. Virender Singh PW-8 HC Jagpal Singh First Investigating Officer PW-9 Sh. Vivek Kumar Gulia Ld. Metropolitan Magistrate, KKD Courts PW-10 Ms. Mayuri Singh Ld. Metropolitan Magistrate, KKD Courts PW-11 Ct. Ravinder Accompanied HC Jagpal Singh PW-12 SI Gopi Chand Arrest witness, PS Sahibabad, U.P. PW-13 Insp. Virender Singh Second Investigating Officer PW-14 Ct. Yogender Accompanied IO SI Dharmender PW-15 SI Dharmender Third Investigating Officer PW-16 Sh. R.L. Meena Ld. Metropolitan Magistrate, KKD Courts PW-17 SI Vinay Pal Special Cell, Delhi Police
21. Incriminating circumstances appearing in the evidence were put to the accused Waseem. According to him, he refused to participate in the Test Identification Parade (TIP) as he was shown in the police station. He pleaded innocence and claimed false implication. He stated that the case property was planted upon him.
22. The accused Faim @ Pauna pleaded innocence and claimed false implication. His defence is as under:-
"Question 12: Why the witnesses have deposed against you?
Ans. I was lifted by the police officials from the Special Cell from a place near my house. They had taken me somewhere. They detained me for 6-7 days without producing me before the Magistrate. On 21.09.2013, I was lifted from a place near my house. On 25.09.2013, they brought me to the police station and on 26.09.2013, I was produced before the Patiala House Court and two days remand was obtained. I did not commit any dacoity. I was not involved in the present case. I was falsely implicated in this case."
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23. I have heard Sh. I.H. Siddiqui, Ld. Addl. PP for the State, Sh. Mohd. Hassan, Amicus Curiae for the accused Waseem and Sh. A.A. Khan, Advocate for the accused Faimuddin @ Pauna and examined the evidence on record.
24. Sh. I.H. Siddiqui, Ld. Addl. PP for the State submitted that the accused Waseem refused to participate in the Test Identification Parade (TIP) without any cogent reason and the stolen bag alongwith robbed amount of Rs. 1500/-, Deposit slip pertaining to Oriental Bank of Commerce dated 04.07.2011, a copy of letter head of Gopi Service Station, two slips of Oriental Bank of Commerce dated 19.05.2011 and 21.05.2011, one photocopy of letter cheque bearing No. 342695 of Oriental Bank of Commerce, one photocopy of letter of Oriental Bank of Commerce were recovered from the almirah kept in the room at first floor of the house of the accused Waseem at H. No. 77, Vikram Enclave, Shalimar Garden, Sahibabad, UP. He submitted that the bag Ex.P1 was identified by PW-4 Daulat Ram in the Test Identification Parade (TIP) proceedings conducted by PW-9 Sh. Vivek Kumar Gulia, Ld. Metropolitan Magistrate, Karkardooma Courts. He submitted that the accused Waseem has not given any explanation for retaining the robbed articles in his house. He submitted that the accused Faimuddin @ Pauna refused to participate in the Test Identification Parade and he was declared proclaimed offender by Sh. M.P. Singh, MM-08, North-East, Delhi vide order dated 11.01.2012 and thereby committed offence U/s. 174-A IPC.
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25. Sh. Mohd. Hassan, Amicus Curiae for the accused Waseem submitted that PW-3 Shamsher Singh and PW-4 Daulat Ram have not identified the accused Waseem as the person who had robbed them. He submitted that the recovery of bag alongwith other articles does not expire confidence. He submitted that the recovery was effected from the house of the accused Waseem in Sahibabad, U.P. but there is no departure entry. He submitted that there is no arrival entry in any police station of Sahibababd, U.P. He submitted that there is no site plan of the place of recovery of the said bag. He submitted that no public witness was associated during the search and seizure proceedings. He submitted that such bag and other articles are easily available and therefore, the alleged recovery from the accused Waseem is not sufficient to connect him with the offences in question. He submitted that there is no evidence to bring home the charges against the accused Waseem.
26. Sh. A.A. Khan, Advocate for the accused Faimuddin @ Pauna submitted that PW-3 Shamsher Singh and PW-4 Daulat Ram have not identified the accused Faimuddin @ Pauna and therefore, his refusal to participate in the Test Identification Parade is inconsequential. He submitted that there is no evidence that the accused Faimuddin @ Pauna was residing at H. No. 1053, Gali Panwali, Bara Tooti Chowk, Sadar Bazar, Delhi. He submitted that the name of the accused Faimuddin @ Pauna was disclosed by the accused Waseem in his disclosure statement dated 23.09.2011 Ex.PW7/A. FIR No. 238/11 State Vs. Waseem & Ors. Page No. 10 of 16
27. Sh. A.A. Khan, Advocate for the accused Faimuddin @ Pauna further submitted that in the said disclosure statement Ex.PW7/A, the address of the accused Faimuddin @ Pauna is not mentioned. He submitted that there is no evidence on record as to how PW-13 Insp. Virender Singh ascertained the address of the accused Faimuddin @ Pauna as 1053, Gali Panwali, Bara Tooti Chowk, Sadar Bazar, Delhi. He submitted that the accused Faimuddin @ Pauna was not aware that he was wanted in this case and as such, the offence under section 174-A IPC is not made out against the accused Faimuddin @ Pauna.
28. I have carefully examined the evidence on record.
29. The case of the prosecution is that on 04.07.2011 at 3.00 p.m. in front of Metro Station, Shastri Park, ISBT Road, Delhi, the accused Waseem and Faimuddin @ Pauna alongwith their six associates committed dacoity by using a country made pistol and thereby, robbed a Scooter No. DL 4S BF 4878 and a sum of Rs. 1,59,000/- and other documents from the complainant Daulat Ram.
30. PW-4 Daulat Ram is the complainant in this case. However, he exonerated the accused Waseem and Faimuddin @ Pauna. He has not identified them before the Court. He stated that the accused Waseem and Faimuddin @ Pauna were not involved in the commission of the offence. Therefore, refusal of the accused Waseem and Faimuddin @ Pauna to participate in Test Identification Parade (TIP) is insignificant.
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31. As regards the accused Waseem, PW-4 Daulat Ram deposed as under:-
"I do not know accused Waseem present in the Court today. I had not seen accused Waseem at the time of incident nor he was involved in the commission of the afore-said offence. I had not identified accused Waseem ever anywhere after incident.
32. PW-4 Daulat Ram was cross-examined by the prosecution. However, the prosecution could not elicit anything from his cross-examination, as under:-
"I did not make any supplementary statement before the IO. Vol. My statement was recorded only once. It is incorrect to suggest that on 23.09.2011, I alongwith Shamsher Singh had gone to PS New Usmanpur to make inquiry about the present case and at that time, IO was making inquiry from one boy and on seeing that boy, I had told to the IO and identified before him that boy whose name was learnt as Waseem as the same person who alongwith his associates on 04.07.2011 was also involved in snatching the cash and committing the aforesaid offence. I did not state so before the police. Confronted with supplementary statement portion A to A of Ex.PW4/B where it is so recorded. It is incorrect to suggest that the aforesaid boy alongwith his associates had also threatened us by pointing out country made pistol and rider of front side motorcycle had snatched our scooter and I have identified him very well or that accused Waseem was also involved in the commission of offence. I did not state so before the police. Confronted with supplementary statement portion B to B of Ex.PW4/B where it is so recorded. It is incorrect to suggest that I had told to the police in my statement that I can identify the assailants. I did not state so before the police. Confronted with portion A to A of statement Ex.PW4/A where it is so recorded. It is further incorrect to suggest that I am deliberately not identifying the accused Waseem present in the Court today as I have been won over by the accused and deposing falsely to save him in this case."
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33. PW-3 Shamsher Singh was accompanying PW-4 Daulat Ram at the time of the incident. He has not identified the accused Waseem. He stated that he has not seen the accused Waseem at the time of the incident. He stated that the accused Waseem was not involved in the commission of the offence. He denied that he had identified the accused Waseem in the police station.
34. As regards recovery of the bag and the other articles, this Court is of the opinion that the said recovery is insignificant. PW-3 Insp. Virender Singh did not make any departure entry in the police station while departing from the police station alongwith the police team and the accused Waseem for effecting recovery. He did not make any arrival entry in PS Sahibabad, U.P. He did not associate any public witness at the time of search and seizure proceedings. No police official from PS Sahibabad, U.P. was associated to the recovery proceedings. There is no site plan of the place of recovery of the bag and other articles.
35. Recovery of bag and a small amount of Rs. 1500/- allegedly at the instance of the accused Waseem in the absence of the departure entry, arrival entry and public witness is not sufficient to connect him with the offences in question. There is no evidence to connect the accused with the offences.
36. Accordingly, the prosecution has failed to prove the charges against the accused Waseem and he is acquitted from the offences under section 395, 397 and 412 IPC.
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37. As regards the accused Faimuddin @ Pauna, PW-4 Daulat Ram stated as under:-
"The boys who had snatched scooter from me by putting me in fear had been wearing helmets. I had not seen their faces. I cannot identify the accused who robbed me."
38. PW-4 Daulat Ram was cross-examined by the prosecution. The prosecution could not elicit anything from his cross-examination, as under:-
"It is wrong to suggest that accused Faimuddin present in the Court today is one of the assailants who had robbed me alongwith his associates or that I am not identifying him deliberately as won over by him. It is wrong to suggest that accused Faimuddin was involved in the commission of the offence in the present case with us."
39. PW-3 Shamsher Singh has not identified the accused Faimuddin @ Pauna. He stated as under:-
".....I cannot identify the persons who had robbed the scooter since they were wearing black helmets. I had not seen their faces. I cannot identify accused Faimuddin as one of those persons since I had not seen their faces.....I had not seen accused Faimuddin at the time of incident nor he was involved in the commission of the aforesaid offence. I had not identified accused Faimuddin ever anywhere after incident."
40. PW-3 Shamsher Singh was cross-examined by the prosecution. The prosecution failed to elicit anything from his cross-examination, as under:-
"It is wrong to suggest that I made any statement to IO that I had seen the robbers and I can identify them. It is wrong to suggest that I had stated so to the police in my statement Ex.PW3/C. Confronted with statement Ex.PW3/C where it is so recorded.
FIR No. 238/11 State Vs. Waseem & Ors. Page No. 14 of 16 It is further wrong to suggest that I am deliberately not identifying the accused persons present in the Court today as I have been won over by them or that I am deposing falsely at their instance."
41. Accordingly, there is no evidence to connect the accused Faimuddin @ Pauna with the offences in question.
42. As regards the offence under section 174-A IPC, it is seen that the accused Waseem disclosed involvement of the accused Faimuddin @ Pauna in his disclosure statement Ex.PW7/A. A perusal of the disclosure statement Ex.PW7/A would show that he did not disclose the address of the accused Faimuddin @ Pauna. PW-13 Insp. Virender Singh has not stated as to how he ascertained the address of the accused Faimuddin @ Pauna as H. No. 1053, Gali Panwali, Bara Tooti Chowk, Sadar Bazar, Delhi. There is no evidence at all that the accused Faimuddin @ Pauna was residing at the above said address from 23.09.2011 to 11.01.2012 on which date he was declared proclaimed offender.
43. In the absence of the evidence, it can not be held that the accused Faimuddin @ Pauna was evading the process of law and concealing himself so that process could not be executed against him.
44. Accordingly, the accused Faimuddin @ Pauna can not be held guilty under section 174-A IPC.
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45. In view of the afore-said discussion, the accused Faimuddin @ Pauna is acquitted from the offences under section 395, 397 and 174-A IPC.
Announced in the open court SANJAY SHARMA on this 10th day of July, 2015. Special Judge NDPS (North-East) ASJ:KKD Courts, Delhi.
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