Final Order 7

Order Details: COPY OF JUDGMENT
Pdf Text: DLNW010059442023
Presented on : 01-07-2023
Registered on : 04-07-2023
Decided on : 01-02-2024
Duration : 0 years, 7 months,
1 days
IN THE COURT OF
ASJ/SPECIAL.JUDGE(NDPS)
AT NORTH WEST, ROHINI COURTS, DELHI
(Presided Over by Sh. Vikram)
CA No. 126/2023
JAAN MOHD. @ JAVED
S/o Sh. Gaffur Mohd.
R/o I-1190, Mangolpuri,
Delhi.
…. Appellant
Vs
THE STATE
(N.C.T. of Delhi)
.... Respondent
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Ld. Advocate of Appellant : Sh. Madan Mohan and
Sh. Ratneshwar Kumar.
Ld. Addl. PP for State/Respondent : Sh. K.D. Pachauri
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JUDGMENT
(Delivered on 01-02-2024)
1. This criminal appeal under Section 374 Cr.P.C. has been
preferred by the appellant against the judgment dated 26.04.2023
and order on sentence dated 30.05.2023 passed by the Court of
Ld. MM-04, North West, Rohini Courts, Delhi (herein after
called the impugned orders) in a case bearing FIR No. 549/2000
under Sections 356/379/411/34 IPC registered with P.S Shalimar
Bagh titled as “State Vs. Jaan Mohd. @ Javed” whereby the Ld.
MM convicted the appellant for offence punishable under
Sections 356/379/34 IPC and sentenced him to undergo simple
imprisonment of nine months under Section 379 IPC and simple
imprisonment of six months under Section 356 IPC.
2. The brief facts of the case are that an FIR bearing No.
549/2000 under Section 356/379/411/34 IPC was registered with
P.S Shalimar Bagh on 02.08.2000 on the complaint of
complainant Smt. Santosh who stated that on 02.08.2000 she was
returning to her house in a rickshaw and when reached near C P
School, AP Block, two boys came on a scooter from behind and
the pillion rider snatched the gold chain of complainant and
drove away towards the side of AP Market.
3. After completion of investigation, IO filed the chargesheet
against appellant and co-accused Sultan (who already pleaded
guilty on 14.02.2019). Appellant was summoned and vide order
dated 23.04.2003 charge was framed against appellant to which
he pleaded not guilty and claimed trial.
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4. In evidence prosecution lead 07
witnesses.
4.1 Pw1 was the duty officer who proved FIR No. 549/2000 as
Ex. PW 1/A.
4.2 Pw2 was the complainant who deposed about the incident
and proved her statement as Ex. PW 2/A and her chain as Ex. P1
and she identified the appellant as the person who snatched the
chain being pillion rider but failed to identify the co-accused
stating that he was wearing helmet.
4.3 Pw3 was HC Balwan Singh who alongwith IO went to spot
and got the FIR registered on the basis of tehrir.
4.4 Pw4 was SI Raj Singh, Pw-5 was HC Rajender and Pw-6
was Insp. Jitender Singh. They all were posted in Operation Cell,
PS Saraswati Vihar. On secret information received by Pw-6,
appellant and co-accused Sultan were apprehended and appellant
handed over a gold chain stating that he snatched this chain from
a lady at Gujrawala Town. Co-accused sultan also handed over a
chain stating that he snatched the said chain from a lady near CP
School. They proved seizure memo of case property as Ex. PW
4/A. Disclosure statement of appellant was recorded vide memo
Ex. PW 4/B. Pointing out memo of the spot with respect of
appellant was prepared as Ex. PW 4/E.
4.5 Pw-8 was Insp. Laxmi Narayan Saini. On 02.08.2000 on
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receipt of DD No. 30 he alongwith Pw-3 reached at the spot i.e.
AP Block, near MCD Primary School, Pitampura, Delhi and
recorded statement of complainant, Ex. PW 2/A, there. He
prepared rukka Ex. PW 8/A and got the FIR registered through
Pw-3. He also prepared site plan Ex. PW 8/B and recorded
supplementary statement of complainant. He further deposed that
on 02.10.2000 he received information vide DD No. 34 regarding
apprehension of two persons who disclosed their involvement in
the present case and recovery of case property. Thereafter, he
moved applicant for production warrants of those two persons
and formally arrested the accused Sultan Ahmed and Jaan Mohd.
Vide memos Ex. PW 8/C & Ex. PW 8/D. He also moved
application, Ex. PW 8/E, for TIP of accused persons but both
accused persons refused to participate in TIP proceedings. He
also got conducted TIP of case property and the same was
released to complainant on superdari by order of Court. He
recorded the statement of witnesses under Section 161 Cr.P.C.
and thereafter handed over the complete case file to SHO PS
Shalimar Bagh. He correctly identified both accused persons as
well as case property.
5. After completion of PE accused Jaan Mohd. was
examined u/S 313 r/w Section 281 Cr.P.C wherein he claimed
innocence and false implication. Appellant/Accused opted not to
lead evidence in his defence.
6. There was another accused namely Sultan who has already
pleaded guilty for offence punishable under Section 356/379/411
IPC.
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7. The case of the prosecution was that on 02.08.2000
complainant was returning to her house in a rickshaw and when
she reached near C P School, AP Block, two boys came on a
scooter from behind and the pillion rider snatched the gold chain
of complainant and drove away towards the side of AP Market.
But the complainant could not note down the registration number
of motorcycle. As per statement of complainant both the said
boys were of age between 20-21 years and she stated that she
could identify those persons.
8. During investigation, gold chain of complainant was
recovered from the possession of co-accused Sultan which was
seized vide seizure memo Ex. PW 4/A. Seizure memo records
that at the time of commission of offence, the scooter was being
ridden by appellant and co-accused Sultan, being pillion rider,
snatched the gold chain of complainant.
9. The case prepared by prosecution was that appellant Jaan
Mohd. Was the one who driving the scooter and accused Sultan
snatched the chain. There are contradictions in the case of
prosecution and in statement of complainant she given in the
Court with respect to identity of accused persons as in her
complaint given to police, on which case was registered,
complainant stated that she could identify both the accused
persons but during her cross examination she deposed that rider
of the scooter was wearing the helmet at the time of incident and
pillion rider was not wearing the helmet. Therefore, there was no
occasion for complainant to identify both the accused persons as
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one of them i.e. rider, was wearing helmet at the time of offence.
10. As per prosecution, at the time of incident, the scooter was
being driven by appellant but in her examination complainant
identified the appellant as the person who was pillion rider and
snatched her gold chain.
11. Ld. Trial Court convicted the appellant after observing that
complainant has correctly identified the appellant Jaan Mohd as
the person who was pillion rider and snatched the gold chain of
complainant and convicted the appellant for offence punishable
under Section 356/379/34 IPC.
12. It appears had ld. Trail Court failed to consider the
contradiction in the statement of complainant given before the
Court and in the statement given to police on which present case
was registered. As per the charge sheet filed by prosecution,
appellant was the rider of the scooter and co-accused Sultan was
the pillion rider who snatched the gold chain.
13. Hence, the identification of appellant appears to be
prompted by police officials because the appellant was the one
who was driving the scooter and wearing helmet. There was no
occasion with the complainant for identifying him. Further the
appellant and co-accused were arrested after two months. No
sketch or description of any kind of accused persons was made
during this period.
14. In view of the same, as the contradiction with respect to
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identity has not been considered by ld. Trial Court while passing
judgment and the identification of appellant being doubtful, the
conviction passed against appellant cannot stand. Hence, the
judgment dated 26.04.2023 and order on sentence dated
30.05.2023 are set aside. Appellant is acquitted. He is directed to
furnish bonds under Section 437-A Cr.P.C.
15. Appeal is accordingly disposed off. A copy of this
judgment be sent to ld. Trial Court alongwith TCR.
Date : 01.02.2024
(Vikram)
ASJ-02/Spl. Judge (NDPS),
North West, Rohini Courts,
Delhi/01.02.2024
Dictated on : 01.02.2024
Transcribed on : 01.02.2024
checked on : 01.02.2024
Signed on : 01.02.2024
(Vikram)
ASJ-02/Spl. Judge (NDPS),
North West, Rohini Courts,
Delhi/01.02.2024
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