Delhi High Court

State vs Mohd Mazid & Anr on 17 August, 2011

Author: Suresh Kait

$~26
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                   Judgment Delivered on: August 17th 2011

+                   CRL.L. P.No.395/2011

STATE                                                   ..... Petitioner
                               Through: Ms.Rajdipa Behura & Mr.Manoj
                               Ohri, APPs for State.

                    versus

MOHD MAZID & ANR                                     ..... Respondent
                               Through: NEMO

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

    1. Whether the Reporters of local papers may be allowed to
       see the judgment?                               NO
    2. To be referred to the Reporter or not?          NO
    3. Whether the judgment should be reported in the NO
       Digest?

SURESH KAIT, J. (Oral)

Crl.M.A.No.9636/2011(exemption)

Exemption is allowed subject to just exceptions. Criminal M.A. stands disposed of.

Crl.M.A.No.9635/2011(delay)

For the reasons explained, delay of 33 days stands condoned.

Criminal M.A. stands disposed of.

CRL.L. P.No.395/2011

1. The petitioner has assailed the judgment dated

15.03.2011 passed by ld.Additional Sessions Judge/South-East

District, Saket Courts, New Delhi, whereby, the accused

persons were acquitted from all the charges against them in

case FIR No.148/2008 at police station C. R. Park, New Delhi.

2. Learned APP submits that ld.Trial Court has not

appreciated the fact that the complainant has identified the

accused persons in the Court. He further submits that the

accused persons refused to join the TIP proceedings.

3. Additionally, PW1 has categorically deposed that he

withdrew Rs.86,000/- from HDFC Bank, GK-II, Masjid Moth, New

Delhi. After withdrawing the amount, he reached near his

motorcycle No. DL-3S-AR-3818 which was parked in front of

the bank. When he was trying to start his motorcycle, a person

from the opposite side of the road came and he put a country

made pistol on his chest and pushed the trigger twice, but it

was misfired. That person was trying to snatch his bag

containing the abovesaid amount. He pushed him, as a result

of which, the country made pistol fell down on the ground. He

put his leg on the said country made pistol. When the accused

could not snatch his bag, he put off his helmet and hit the

same on the head of complainant thrice. Thereafter, that

person again wore helmet and ran towards the road where one

person was sitting on a motorcycle at the road. Thereafter,

motorcyclist and that person ran away from the spot.

Accordingly, he informed the police. He handed over the

country made pistol to police. His statement was recorded

which is Ex.PW1/A. Police prepared the sketch of the country

made pistol and the cartridges; same is Ex.PW1/C.

4. Ld.APP for state has drawn the attention of this

Court to the statement of PW4 SI Naresh Hooda, who deposed

that on 07.01.2009 the investigation of the case FIR

No.04/2009, police station Kalkaji was assigned to him. On

09.01.2009, he interrogated both the accused persons present

in the Court; at that time, the accused persons were in police

remand in the said case. The accused persons disclosed about

their involvement in case FIR No.148/2008, police station C. R.

Park and he recorded their disclosure statement. Further

deposed that HC Harish Chandra was also associated with the

investigation and during recording of disclosure statements of

accused persons. Information was given to the IO of the

present case and regarding disclosure statement of the

accused persons.

5. I note that in the cross-examination, he has

admitted that when he received the case file, it was containing

the disclosure statement of the accused persons recorded by

ASI Balbir Singh. Further admitted the suggestion that no

recovery pertaining to the present case effected pursuant to

the disclosure statements.

6. Ld.Trial Judge has tried both the accused persons

for the offence punishable under Section 393 r/w 34 IPC and

Section 397 IPC.

7. The case of the prosecution in brief is that:-

On 21.08.2008 at about 02:15PM, complainant Anoop

Kumar Batham had withdrawn Rs.86,000/- from HDFC Bank,

Masjid Moth. After the withdrawal of this amount, he had kept

it in a bag. He was ready to start his motorcycle bearing

registration No. DL-3S-AR-3818, at the same time, one person

came over to his direction from the opposite side of the road

and put a country made pistol on his chest and pushed the

trigger twice, however, the same misfired. The said person

also made an attempt to snatch the bag containing Rs.86,000/.

The complainant pushed him, as a result of which, the country

made pistol fell down and the said person put off his helmet

and hit the complainant on the head thrice. Thereafter, he

wore the helmet and ran towards the other side of the road

where one more person was waiting on the motorcycle and

immediately they ran away from the spot. The country made

pistol of .315 bore was handed over the police officer, SI K. P.

Singh. His statement was recorded and the case was got

registered.

8. Ld.Trial Judge has firstly discussed the site plan of

the place of occurrence which was prepared. Later on the

accused was arrested in some other case in case FIR

No.04/2009 police station Kalkaji, in which they had allegedly

made disclosure statement with regard to their involvement in

the present case. The information regarding said disclosure

statement was conveyed to the IO of the present case and who

arrested the accused persons and again recorded their

disclosure statement in the present case. Accused refused to

join the TIP proceedings during the investigation. The charge-

sheet was filed in the Court after obtaining FSL report with

regard to the country made pistol which was recovered from

the spot. The said country made pistol was opinioned to be a

'fire-arm' as defined under the Arms Act.

9. The prosecution had examined seven witnesses in

all. In the statement under Section 313 Cr P C accused

persons have denied the evidence against them, but had not

preferred to lead any evidence in their defence.

10. The Trial Judge has discussed the basic principle of

law that the onus lies on the prosecution to prove its case

beyond all reasonable doubt and this onus, never shifts. As

has been observed in the present case on the question of

identity of the accused is of vital importance. Accused persons

were not apprehended at the spot. The incident had taken

place on 21.08.2008 and the accused persons were arrested

after about six months i.e. on 21.02.2009 in the present case.

Accused persons during the investigation had refused to join

the TIP proceedings; however, no adverse inference was drawn

against them for refusing to participate in the TIP for the

reasons that when they were produced in the Court on

21.02.2009, on the basis of the Production Warrants, they

were not in muffled face.

11. PW-5 SI Jamil Ahmad who had arrested the accused

persons in the present case had admitted in his cross-

examination that the accused persons were not in muffled face

nor he had moved any application for keeping the accused

persons in muffled face, when he sought their judicial custody

remand. Therefore, the simple refusal to join TIP proceedings

cannot be read in evidence against them.

12. The next question as was dealt with by the Trial

Judge was, about the evidentiary value of the identification of

the accused by PW1 in the Court. As per his statement, it was

accused Mohammad Ishtiaq, who had put the country made

pistol on his chest and pushed the trigger twice, but the same

was misfired. Accused Mohammad Mazid was sitting on the

motorcycle on the opposite side of the road and thereafter

both the accused persons had ran away.

13. I note that in the cross-examination, PW1 Sh.Anoop

Kumar Batham has admitted that accused Mohammad Ishtiaq

who came come to him, was wearing a helmet, he further

deposed that the person who was standing on the opposite

side of the road and also wearing helmet. Further he stated

that the distance between the motorcycle and the place of

incident was about 30-40 meters. There was a divider on the

road and the vehicles were plying on the road. So far as the

question of identity of the persons who was sitting on the

motorcycle on the other side of the road is concerned, there is

no cogent evidence that the accused Mohammad Mazid was

the person who was sitting on the motorcycle.

14. The Trial Judge has observed that even the make of the

motorcycle has not been mentioned anywhere in the

statement nor its registration number has been noticed.

Therefore, there was no question of identification of person

sitting at a distance of 30-40 meters wearing helmet.

15. Ld.Trial Judge has also dealt with the question of

identity of accused Mohammad Ishtiaq. In the examination-in-

chief of PW1 Shri Anoop Kumar Batham has deposed that the

accused had tried to snatch the bag from him, but he could not

snatch his bag and then put off his helmet and hit on his head

thrice. In the statement recorded, Ex.PW1/A, however, this

fact was not stated by PW1 Shri Anoop Kumar Batham. When

he was asked this question in his cross-examination, he stated

that he has told to the police that when the accused has come

to him, and could not snatch the bag from him, he put off his

helmet and hit on his head thrice.

16. Ld.Trial Judge considered this fact to be

improvement, as this fact is not mentioned in the statement

Ex.PW1/A.

17.         The       Trial     Court   has   also     noted       that     the

improvement made by the witness in their statements.                        PW1

Shri Anoop Kumar Batham has made vital improvement in the

statement on a very crucial aspect of the case as to the

identity of the accused. The absence of this fact of accused

taking off his helmet and hitting thrice and mentioning the fact

in the examination-in-chief PW1 seems to be an effort to nail

down the accused in some way or the other. Moreover, the

evidence, led by the prosecution with regard to the identity of

the accused, is therefore, not found cogent and reliable. Apart

from this, there is no evidence on record that the complainant/

PW1 Shri Anoop Kumar Batham had withdrew the sum of

Rs.86,000/- from the bank. IO had also did not seize the said

currency notes of Rs.86,000/- from the complainant, nor any