Delhi District Court
State vs Pawan Yadav on 20 May, 2024
IN THE COURT OF MS. NEETIKA KAPOOR, MM-06, SOUTH WEST
DISTRICT, DWARKA COURTS, DELHI.
DLSW020043012022
FIR Number : 882/2021
P.S. : Dwarka North
U/s : 392/411/34IPC
STATE VS. PAWAN YADAV.
a) Cr. no. of the Case : 666/2022
b) Name & address of the Complainant : Ashish Verma S/o
Manoj Kumar
Verma R/o H. No.
291, L Extension,
Mohan Garden,
Uttam Nagar, New
Delhi.
c) Name & address of the accused : Pawan Yadav S/o
Munshi Lal R/o Gali
No.6, Shahupuri
Chowk, Ballabhgarh,
Haryana.
d) Date of Commission of offence : 25.12.2021
e) Offence complained of : 392/411/34 IPC
f) Plea of the accused : Pleaded not guilty
FIR Number : 882/2021 State vs. Pawan Yadav Page 1 of 14
Digitally signed by
NEETIKA NEETIKA KAPOOR
KAPOOR Date: 2024.05.20
18:04:30 +0530
g) Final Order : Acquittal
Date of registration of FIR : 26.12.2021
Final arguments heard on : 19.04.2024
Judgment Pronounced on : 20.05.2024
JUDGMENT
1. The accused Pawan Yadav is facing trial for the commission of offences punishable under Sections 392/411/34 of the Indian Penal Code, 1860 (hereinafter referred to as IPC) in connection with the case FIR No. 882/2021 registered at P.S. Dwarka North.
2. Briefly stated, the case of the prosecution is that on 25.12.2021 at about 11:00 pm near DDU Park, Sector 13, Dwarka, Delhi, accused Pawan Yadav along with his accomplices (CCLs) came in an auto rickshaw and had a fight with the complainant and during the fight, snatched one black colored purse by using criminal force from complainant Ashish Verma. Thereafter, the boys fled from the spot. Feeling aggrieved complainant went to PS Dwarka North and gave a complaint, thereafter, present FIR was registered for offence u/s 392/411/34 IPC and IO ASI Manoj Kumar was appointed as the 1st Investigating Officer of the case.
3. During investigation, IO inspected the site of the incident and having inspected it, prepared a site plan. IO formally seized the stolen purse vide separate seizure memo. Thereafter, accused was arrested in the present FIR. Statements of the witnesses were recorded and based on the material collected, accused namely Pawan was found responsible for the commission of offences punishable under Section 392/411/34 of the IPC. After completion of the FIR Number : 882/2021 State vs. Pawan Yadav Page 2 of 14 Digitally signed by NEETIKA NEETIKA KAPOOR KAPOOR Date: 2024.05.20 18:04:35 +0530 investigation, case file was handed over by the IO to SHO of Police Station Dwarka North who after following the codal formalities, prepared and filed the instant challan against the accused persons.
4. On finding sufficient material on record against accused person, he was summoned before this court and on his appearance, copies of the challan and other documents were supplied to him in compliance of Section 207 of Code of Criminal procedure, 1973 (herein referred to as Cr.P.C).
5. On finding a prima-facie case against the accused under Sections 392/411/34 of I.P.C., charge was put to him, to which he pleaded not guilty and claimed to have a defence to make.
6. Thereafter, prosecution was called upon to adduce its evidence qua commission of offence u/s 392/411/34 IPC. The prosecution in order to prove its case examined as many as 02 witness. PW-1 Ashish Verma is the complainant and sole eye witness of the case and PW-2 ASI Manoj Kumar is the Investigating Officer in the present case.
7. Thereafter, statement of accused u/s 294 Cr.PC r/w Section 313 Cr.PC was recorded wherein he admitted following documents relied upon by the prosecution :
1. FIR No. 882/2021 alongwith Ex.A1 certificate u/s 65B Indian Evidence Act
2. DD No. 23A Ex.A2 3 DD No. 122A Ex.A3
4. FIR No. 879/2021 Ex.A4
5. Age proof of CCL Dev Kishan Ex.A5
6. Age proof of CCL Ankesh Singh Ex.A6
8. After completion of prosecution evidence, incriminating evidence adduced by prosecution was put to accused by recording his statement u/s 313 Cr.P.C, wherein he denied the case of prosecution and pleaded innocence FIR Number : 882/2021 State vs. Pawan Yadav Page 3 of 14 Digitally signed NEETIKA by NEETIKA KAPOOR KAPOOR Date: 2024.05.20 18:04:41 +0530 and preferred not to lead any evidence in his defence. Thereafter, final arguments were heard.
9. I have heard Mr. Puspendra Verma, Ld. APP for State and Mr. Manish Sehrawat, Ld. LAC for accused and have gone through the records carefully.
10. It is argued by Ld. APP for the State that the evidence of hostile witness can be read on material points, and it can be used to prove the offence charged against the accused. As such, it is prayed that accused was be punished for the said offence.
11. Per contra, Ld. Counsel for accused has argued that State has failed to establish its case beyond reasonable doubt. Ld. LAC has argued that main witness has turned hostile and despite reading his evidence as a whole, nothing has come on record against the accused. As such, it is prayed that accused be acquitted for the said offence.
12. On the basis of evidence on record, the following points arise for determination in the present case:
1. Whether the prosecution has proved its case beyond reasonable doubt that on 25.12.2021 at around 11.00 pm, near DDU Park, Sector 13, Dwarka, Delhi accused Pawan Yadav along with his accomplices (both CCLs) had snatched one black colored purse belonging to the complainant Ashish Verma by using criminal force by making preparation with intention to cause instant hurt, instant FIR Number : 882/2021 State vs. Pawan Yadav Page 4 of 14 Digitally signed NEETIKA by NEETIKA KAPOOR KAPOOR Date: 2024.05.20 18:04:47 +0530 death or instant wrongful restraint to complainant, as alleged?
2. Whether on 27.12.2021 at an unknown time, stolen purse was recovered from possession of accused Pawan Yadav, which he had received or retained knowing or having reason to believe the same to be stolen property, as alleged?
3. Final order.
13. For the reasons to be recorded hereinafter while discussing the reasons for my findings, my findings on the aforesaid points are as under:
Point No. 1: No. Point No. 2: No. Final order: The accused namely Pawan Yadav is acquitted as per the operative part of the judgment.
REASONS FOR FINDINGS POINT NO. 1 & 2
14. Both these points being interlinked and interconnected are taken up together for discussion for the sake of brevity and precision.
15. To bring home the culpability of accused under Section 392 IPC, it is pertinent that relevant provisions of law are first read. Offence of Robbery is defined u/s Section 390 and punished u/s 392 PC and both are reproduced herein below:
FIR Number : 882/2021 State vs. Pawan Yadav Page 5 of 14 Digitally signedNEETIKA by NEETIKA KAPOOR KAPOOR Date: 2024.05.20 18:04:54 +0530
390. Robbery.--In all robbery there is either theft or extortion. When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
Section 392 IPC: Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be FIR Number : 882/2021 State vs. Pawan Yadav Page 6 of 14 Digitally signed by NEETIKA NEETIKA KAPOOR KAPOOR Date: 2024.05.20 18:05:00 +0530 committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years."
16. For a case to fall under section 392 IPC in case of theft amounting to robbery, actual theft as defined in section 378 IPC should be committed. In case titled "Malkhan Singh vs. State of Haryana 1994 SCC (Crl) 1422)", the Hon'ble Supreme Court of India held that for Section 392 IPC to apply, the prosecution has to establish that during the course of commis- sion of the offence of theft the offender had caused or had intended to cause threat of death or hurt or wrongful restraint.
17. It is trite that in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused must be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the case at hand, is to be weighed keeping in view these legal standards.
18. In order to prove its case, the prosecution has examined, PW1 Ashish Verma who being the complainant and sole eye witness is the star witness of the case.
19. PW-1 Ashish Verma stepped into the witness box and deposed that incident took place on 25th December at around 11:30 pm when he was going back to his house on a scooty and had reached DDU park, Sector 13, Dwarka, when one auto hit against his scooty. 6-7 boys were sitting in the auto who suddenly picked up a fight with him. All the boys came out of the auto and started a physical fight. When public started to gather at the spot, the boys ran away in different directions. H ran behind the boys but after some time realised that his black purse was missing. He called PCR on No. 100. Police officials FIR Number : 882/2021 State vs. Pawan Yadav Page 7 of 14 Digitally signed NEETIKA by NEETIKA KAPOOR KAPOOR Date: 2024.05.20 18:05:06 +0530 reached the spot in 10 minutes. He gave a written compliant which is Ex.PW1/A. On 26.12.2021, he again went to PS and gave a compliant which is Ex.PW1/B. Witness failed to identify the accused persons in the court and was declared hospital by Ld. APP for the State and was cross-examined at length.
20. In his cross-examination by Ld. APP, witness was again asked to identify the accused standing in the court but he failed to identify him stating that boys involved in the incident were taller than the accused. Witness denied the suggestion that he was deposing falsely as he had been won over by the accused.
21. PW-1/complainant has turned hostile in the instant case. At this stage, it is pertinent to note that under Indian Law, the evidence of a hostile witness is not discarded completely as the legal maxim "false in uno false in omnibus" is not applicable. Reliance can be placed on the following observations made by Hon'ble Apex Court in case titled "Rohtash Kumar vs. State of Haryana(2013) 14 SCC 434:
"It is a settled legal proposition that evidence of a prosecution witness cannot be rejected in toto, merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced, or washed off the record altogether. The same can be accepted to the extent that their version is found to be dependable, upon a careful scrutiny thereof."
22. Therefore, it must be seen if the evidence of such hostile witness can be relied in part. The perusal of the testimony of this witness shows FIR Number : 882/2021 State vs. Pawan Yadav Page 8 of 14 Digitally signed NEETIKA by NEETIKA KAPOOR KAPOOR Date: 2024.05.20 18:05:11 +0530 inconsistencies and contradiction in his version. PW1 in his testimony has failed to identify the accused and clearly stated that he cannot identify the boys involved in the incident. As the allegations pertain to use of criminal force and assault on the complainant by the boys involved in the incident, identification of the boys is material to the case of the prosecution, however, the witness categorically stated that accused was not the person who had snatched his purse on the day of alleged incident with his accomplices. The witness has merely stated that 6-7 boys had a fight with him and later he realized that his purse was missing but failed to depose anything about the involvement of accused in the alleged incident. Thus, even if the evidence of the hostile witness is considered partly, there is nothing to implicate the accused as it is clear that an inference of use of criminal force or assault by the accused cannot be drawn from a simple testimony of the PW1. Specific evidence has to be led by the prosecution in order to prove the same.
23. Further, PW-2 ASI Manoj Kumar stepped into the witness box and deposed that on 25.12.2021, he was on emergency duty from 8.00 pm to 8.00 am and DD no. 122A was marked to him for investigation. Thereafter, he alongwith Ct. Sandeep went to the spot i.e DDA Park, Sector 13, Dwarka where he met complainant Ashish Verma and his friends namely Alok and Rahul. Ashish Verma narrated the incident to him. As Ashish Verma was drunk at the time of incident, a kalandra was prepared against him by the witness. Thereafter, complainant came to PS and gave a complaint which is Ex.PW1/A. Site plan was prepared at the instance of complainant which is Ex.PW2/A. Tehrir was prepared which is Ex.PW2/B, based on which present FIR was registered. Witness and complainant went to the spot and tried to search the purse but in vain. Complainant gave a second compliant which is Ex.PW1/B. No CCTV cameras were installed at or around the spot of incident. He further deposed that FIR Number : 882/2021 State vs. Pawan Yadav Page 9 of 14 Digitally signed NEETIKA by NEETIKA KAPOOR KAPOOR Date: 2024.05.20 18:05:17 +0530 on 27.12.2021, he was informed by ASI Ved Prakash that he had arrested three persons namely Ankesh, Dev Karan and Pawan Yadav in FIR No. 876/2021 PS Dwarka North and they had disclosed their involvement in the present case. Thereafter, he went to Sehyog Vihar, Matiyala with the complainant where the latter identified the accused. Disclosure statement recorded by ASI Ved Prakash was handed over to him wherein the accused had disclosed his involvement. Two boys namely Ankesh and Dev Karan were apprehended and later handed over to SI Anuj Yadav. Apprehension memos were prepared which are Ex.PW2/C and Ex.PW2/D. Accused was arrested vide arrest memo Ex.PW2/E. Personal search memo was prepared which is Ex.PW2/F. Disclosure statement of accused was recorded which is Ex.PW2/G. ASI Ved Prakash had handed over the recovered cash seized vide separate seizure memo to the witness. Accused was sent for his medical examination and later produced in the court. Witness correctly identified the accused Pawan Yadav in the court.
24. In his cross-examination by Ld. LAC for accused, he denied the suggestion that accused Pawan Yadav was not present at the spot at the time of alleged incident and was not involved in any fight with the complainant. Witness denied the suggestion that no recovery of cash was made from the accused. Witness admitted that cash was never recovered from the accused in his presence. Witness denied the suggestion that currency notes recovered were never identified by the complainant as he had not furnished the numbers of currency notes that had been stolen. No public witness was found at the spot. Witness denied the suggestion that accused has been falsely implicated in the present case and all documents were prepared while sitting in PS. Witness denied the suggestion that signatures of accused were obtained on blank papers which were later made into disclosure statement. Witness denied the suggestion that he was deposing falsely.
FIR Number : 882/2021 State vs. Pawan Yadav Page 10 of 14 Digitally signed byNEETIKA NEETIKA KAPOOR KAPOOR Date: 2024.05.20 18:05:23 +0530
25. Perusal of testimony of PW2 reveal that he had only conducted the investigation after receiving the information regarding the incident and had reached the spot later and thus, cannot depose about the factual position of the incident and the use of criminal force or assault by the accused or his presence at the spot of incident. As such, testimony of PW2 is not sufficient to prove the case of the prosecution for offence u/s 392 IPC. There is no other witness to establish the presence of the accused at the spot at the time of incident as no independent eye witness or public witness was either found by the IO during investigation nor was cited as a witness during trial. Testimonies of rest of the witnesses being police officials are at best corroborative in nature but not sufficient to establish the presence or involvement of accused in the alleged incident to attract the ingredients of Section 392 IPC.
26. Further, to bring home the culpability of accused under Section 411 IPC, it is pertinent that relevant provisions of law are first read. Section 411 IPC is reproduced herein below:
"Dishonestly receiving stolen property.-Whoever dishonestly received or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
27. Perusal of testimony of PW-1 and PW-2 reveals that as such recovery of case property was not made in their presence. PW-1 stated that he was informed about the recovery by IO/PW-2 and PW-2 ASI Manoj stated that he was informed about involvement of accused and recovery of money by ASI FIR Number : 882/2021 State vs. Pawan Yadav Page 11 of 14 NEETIKA Digitally signed by NEETIKA KAPOOR KAPOOR Date: 2024.05.20 18:05:29 +0530 Ved Prakash who had arrested the accused in some other matter wherein he had disclosed his involvement in the present matter.
28. The present FIR was registered on 26.12.2021 whereas the case property as per recovery memo has been recovered on 26.12.2021 i.e. the same day. As per recovery memo, though currency notes are stated to have been recovered from the possession of accused but same fails to state the place or time of recovery or from which part of the clothes of accused were the same were recovered. PW2 also failed to state as to how he was able to state that the currency notes recovered from the accused were the same currency notes that had been stolen from the complainant on the day of the incident despite the fact that complainant had not shared the numbers of stolen currency notes with him.
29. The major assertion of Ld. Counsel for the accused is that no independent witnesses were joined by the police during the whole investigation and same is doubtful. Although non-joining of independent witness cannot be a sole ground to discard the evidence of police witnesses, however, in the present case, as per the version of prosecution witnesses, public persons were present at the spot when case property was recovered from accused. Admittedly, no notice was issued to public persons to join investigations. Inevitably, PW2 deposed that he had gone to Sahyog Vihar, Matiala where complainant had identified the accused but the seizure memo does not bear signature of complainant. The spot of recovery itself was a crowded place which were full of public persons which in itself points towards presence of public persons. The fact that despite availability, no public persons were joined, casts doubt on the version of the prosecution. No sincere attempts were made by the police to join witnesses in the present case and there is no cogent explanation by the prosecution in this regard. As such recovery does not inspire confidence of the court. There is no evidence to suggest that case property was indeed recovered from the possession FIR Number : 882/2021 State vs. Pawan Yadav Page 12 of 14 Digitally signed by NEETIKA NEETIKA KAPOOR KAPOOR Date: 2024.05.20 18:05:35 +0530 of accused person. According, in the opinion of this court, prosecution has failed to prove that offence alleged against the accused on the standards required to be met by prosecution.
30. There is no other witness to establish the guilt of the accused. As such, the prosecution has failed to establish the act of assault/use of criminal force in committing theft on the day of the alleged incident or recovery of stolen property on the part of the accused in the present case and, therefore, failed to prove beyond reasonable doubt the fact that accused Pawan Yadav along with his accomplices had attacked the complainant on the day of the incident and had stolen his purse containing currency notes which were later recovered from accused Pawan Yadav which he had received or retained knowing or believing them to be stolen property. Hence, benefit of doubt must be given to the accused. Thus, these points are answered in the negative and are decided against the prosecution.
FINAL ORDER:
31. Accordingly, in view of the above discussion, since the prosecution could not prove the guilt of the accused for commission of offence punishable under section 392/411/34 of IPC, beyond reasonable doubt, accused namely Pawan Yadav is acquitted of the offence punishable under Section 392/411/34 of IPC.
32. Personal bonds/surety bonds stands cancelled. Endorsement, if any is also cancelled. Sureties stand discharged. Superdarinama, if any stands cancelled. Original documents, if any be returned to the rightful claimant against proper receipt as per rules.
FIR Number : 882/2021 State vs. Pawan Yadav Page 13 of 14 Digitally signed byNEETIKA NEETIKA KAPOOR KAPOOR Date: 2024.05.20 18:05:41 +0530
33. The accused has already furnished personal and surety bonds as per the mandate of section 437-A of the Code of Criminal Procedure, wherein he has undertaken that he shall put in his appearance before the appellate court within the prescribed period in case an appeal is filed and admitted for hearing. File after due completion be consigned to the Record Room.
Announced and signed in the open court on 20th day of May, 2024 Digitally signed NEETIKA by NEETIKA KAPOOR KAPOOR Date: 2024.05.20 18:05:47 +0530 (Neetika Kapoor) MM-06/SWD/Dwarka Court New Delhi/20.05.2024 It is certified that this judgment contains 14 pages, and each page bears my signature.
FIR Number : 882/2021 State vs. Pawan Yadav Page 14 of 14