Delhi District Court
State vs Amjad on 1 February, 2017
IN THE COURT OF SH. SANJAY BANSAL:
ADDITIONAL SESSIONS JUDGE-03 (EAST):
KARKARDOOMA COURTS: SHAHDARA: DELHI.
S.C. No: 939/2016
(ID No.: 02402R0088692013)
State Versus Amjad
S/o Sh. Babu
R/o House No. 375, Village-Pasoda,
District Ghaziabad, U.P.
FIR No. : 537/2013
PS. : New Ashok Nagar
U/s. : 328/392/411/34 IPC
Chargesheet Filed On : 13.03.2015
Date Of Allocation : 01.07.2015
Judgment Reserved On : 30.01.2017
Judgment Announced On : 01.02.2017
JUDGMENT:
1. In the present case, FIR was registered upon the statement of Sh. Dudh Nath Prasad who had gone to the police station himself. The complainant Sh. Dudh Nath Prasad alleged that on 25.10.2013 at about 10:40 am, he was present near Aggarwal Sweet Shop. At that time, two persons came to him and made him inhale something due to which he felt dizziness. He alleged that taking advantage of his condition, the said two persons took away his gold ring weighing about one tola from his hand. On these allegations, FIR was registered under Sec. 328/379/34 IPC. Investigation was carried out.
2. During investigation, on 19.11.2013, a secret information was received that one of the offenders would come at a particular place. Upon this information, a raid was conducted. At about 4:10 pm, one person came near SC No. 939/2016 State Vs. Amjad Page 1 of 8 Metro Station, Main Road and was apprehended at the instance of the secret informer. The said person was accused Amjad. On search of accused, one gold ring was recovered and accused could not explain his possession. Accused was thus arrested in the present case.
3. Judicial TIP of the case property was got conducted. Complainant duly identified the same. Accused refused to participate in his own judicial TIP. After completion of the investigation, chargesheet was filed under Sec. 328/379/411/34 IPC.
4. Copies of the chargesheet were supplied to the accused and Sec. 207 CrPC was complied with. Case was committed to the Court of Sessions as offence 328 IPC was exclusively triable by it.
5. Vide order dated 26.08.2015, passed by this court, charge under Sec. 328/392/411/34 IPC was framed against the accused in the present case. To all the charges, accused pleaded not guilty and claimed trial.
6. Prosecution examined as many as six witnesses to prove the charges.
7. Let us take note of the evidence led by the prosecution. COMPLAINANT/INJURED/MATERIAL WITNESS
8. PW-2 Dudh Nath Prasad, is the complainant. He deposed on the SC No. 939/2016 State Vs. Amjad Page 2 of 8 lines of his allegation. He could not tell the date of offence and submitted that he was suffering from loss of memory. He deposed that on the day of incident at about 10:30/11:00 am, he had gone to market to purchase some goods. He deposed that incident occurred at a distance of half mile from his house. He further deposed that he was going to purchase some hardware material and when he reached near Aggarwal Sweets shop, two persons came to him and made him inhale something through handkerchief. However, PW-2 did not identify the accused as one of the offenders though he identified his gold ring which is Ex. P-1. PW-2 proved his statement as Ex.PW2/A. PW-2 was cross- examined by learned Addl. PP for the State regarding identity of the accused, but in the cross-examination also, PW-2 did not identify the accused as one of the offenders.
INVESTIGATION WITNESS(ES)
9. PW-3 Ct. Pramod deposed that on 25.10.2013, he had reached the spot i.e. Sarpanch Chowk, A-Block, New Ashok Nagar, Delhi alongwith the copy of FIR and original rukka and handed over the same to IO/ASI Yatender. He deposed that IO prepared site plan at the instance of the complainant Dudh Nath Prasad in his presence. PW-3 proved the seizure memo of packet of papers vide Ex.PW3/A. PW-3 also deposed that on 19.11.2013, he had joined investigation with IO/ASI Yatender and went to Checking Point near Metro Station, New Ashok Nagar. He deposed that at about 4:10 pm, accused Amjad was apprehended and one gold ring was recovered from his possession. PW-3 proved the seizure SC No. 939/2016 State Vs. Amjad Page 3 of 8 memo of the said gold ring as Ex.PW3/B, arrest memo of accused as Ex.PW3/C and personal search memo of accused as Ex.PW3/D. He also proved disclosure statement of accused as Ex.PW3/E. One scooter bearing no. DL-3SAL-5944 make Bajaj Chetak was also taken into possession and seized vide seizure memo Ex.PW3/F. PW-3 correctly identified the accused and the case properties i.e. gold ring as Ex. P-1, its photographs as Ex.PW3/G-1 to G-4, bundle of papers as Ex. P-2 and Bajaj Chetak Scooter as Ex. P-3.
10. In cross-examination, he deposed that no public person was requested to join the proceedings regarding arrest of accused.
11. PW-5 ASI Yatender Kumar is the IO. He deposed that on 25.10.2013 at about 3:00/3:15 pm, complainant Dudh Nath Prasad came to him at the PS and he disclosed about the incident. PW-5 recorded his statement Ex.PW2/A on the basis of which, PW-5 made rukka Ex.PW5/A. He also proved site plan Ex.PW5/B and seizure memo of the packet of papers Ex.PW3/A which was handed over to him by the complainant.
12. PW-5 further deposed that on 19.11.2013 at about 4:00 pm, when he was present at Sarpanch Chowk in the area of New Ashok Nagar, one secret informer told him about one of the suspects who would come on scooter near Metro Station Road, New Ashok Nagar. PW-5 deposed that when they reached at the said place, at about 4:10 pm, one person was stopped after being pointed out by the secret informer and he disclosed his name as Amjad. PW-5 deposed that the said Amjad was inquired about the scooter but he could not produce any SC No. 939/2016 State Vs. Amjad Page 4 of 8 document regarding ownership of the said scooter. He further deposed that on formal search of the said person, one ring of golden colour was recovered from right side pocket of his wearing pants. PW-5 deposed that the said person disclosed about his involvement in the incident of the present case. PW-5 also proved seizure memo of the said ring of golden colour Ex.PW3/B, seizure memo of scooter bearing no. DL-3SAL-5944 make Bajaj Ex.PW3/F, arrest memo of accused Amjad Ex.PW3/C, personal search memo Ex.PW3/D and disclosure statement of accused Ex.PW3/E. PW-5 also proved TIP proceedings of the case property Ex.PW4/C. He also identified the case properties as Ex. P-1 to P-3 alongwith the accused.
13. In cross-examination, PW-5 denied that ring was planted upon the accused. He also denied that photographs of accused were shown to the complainant before the TIP.
FORMAL WITNESS(ES)
14. PW-1 HC Ramesh Chand was Duty Officer and he proved copy of FIR No. 537/13 PS New Ashok Nagar as Ex. PW1/A.
15. PW-4 Sh. Rakesh Kumar Rampuri, learned MM had proved the TIP proceedings of the case property of the present case as Ex.PW4/B.
16. PW-6 Sh. J. P. Nahar, learned SCJ/RC had proved the TIP proceedings of the accused in the present case as Ex.PW6/B. As per the TIP proceedings, accused refused to participate in the TIP proceedings. SC No. 939/2016 State Vs. Amjad Page 5 of 8 STATEMENT OF ACCUSED
17. All the incriminating circumstances were put to the accused in his statement recorded under Sec. 313 CrPC. The accused denied the prosecution case in toto. He stated that he was merely going on scooter without helmet, police gave signal to stop him but he did not stop the same on which police officials got infuriated and police implicated him in the present case falsely. As per his statement, recovery of the gold ring was planted upon him.
18. Accused did not lead any evidence in his defence. SUBMISSIONS OF THE PARTIES
19. I have heard Sh. D. K. Singh, learned Addl. PP for the State and Sh. Lokesh Kumar, learned Counsel for the accused. I have also perused the trial court record.
20. Learned Addl. PP for the State submitted that commission of offence has been proved by the prosecution. He argued that gold ring robbed from complainant was recovered from accused. Therefore, accused must be held to be one of the persons who committed robbery upon the complainant. In the alternative, he argued that at least offence u/s 411 IPC is made out against the accused.
21. Learned defence counsel, on the other hand, submitted that testimony of PW-2 is not reliable. He argued that PW-2 has not identified the SC No. 939/2016 State Vs. Amjad Page 6 of 8 accused as one of the robbers. He submitted that benefit of this shall be given to the accused. He further contended that recovery of gold ring has been planted upon the accused. He prayed for acquittal.
22. I have considered the rival submissions of the parties. FINDINGS
23. As is apparent, the case of the prosecution rests on the testimony of PW-2/complainant. PW-2 has deposed about the incident but has not identified the accused. This has adversely affected the case of the prosecution qua charges u/s 328/34 and 392/34 IPC.
24. The prosecution has tried to draw support from evidence regarding recovery of gold ring from accused. On this issue, case of the prosecution rests upon the testimonies of police officials. It is well settled law that testimonies of police officials cannot be discarded merely on the ground that they are police officials unless same are found untrustworthy and suffering from discrepancies and contradictions.
25. From the testimonies of recovery witnesses i.e. PW-3 and PW-5, this court is of the opinion that recovery of the gold ring has been duly proved. No major or fatal contradiction has been pointed out in the testimonies of the recovery witnesses. PW-2 had identified the gold ring in the judicial TIP as well as in the court.
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26. However, still prosecution has not proved the charge u/s 328/34 IPC as well as 392/34 IPC. The time gap between date of robbery and date of recovery of gold ring is too large. This time gap coupled with assertive denial of PW-2 about presence of accused at the time of robbery is sufficient to hold that charge of robbery and administration of stupefying substance has not been proved beyond reasonable doubt.
27. Nonetheless, prosecution has squarely proved the charge u/s 411 IPC. Accused has failed to explain his possession of the gold ring. Therefore, accused is guilty for the offence u/s 411 IPC.
28. In view of the above, accused is acquitted of the charge u/s 328/34 and 392/34 IPC. But accused is convicted of the charge u/s 411 IPC.
29. Let he be heard on sentence.
Announced in open court on 01st day of February, 2017 (Sanjay Bansal) ASJ-03 (East):
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