Delhi District Court
State vs Monu on 9 April, 2014
IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS
JUDGE (EAST), KARKARDOOMA COURTS, DELHI
SC No.19/2013
Unique case ID No.02402R0027922013
FIR No.378/2012
Police Station Kalyan Puri
Under Section 392/397/34 IPC & 25 Arms Act
State Versus Monu
S/o Sh. Raj Kumar
R/o 12/288, Trilok Puri, Delhi.
Date of Institution : 25.04.2013
Date of judgment reserved : 28.03.2014
Date of order : 09.04.2014
J U D G M E N T
The Police of Police Station Vivek Vihar has filed the present chargesheet against accused Monu in FIR No.378/2012, under Section 392/397/34 IPC and 25 Arms Act.
2 Briefly stating the case of the prosecution is that on 31.10.2012, a PCR call was made regarding robbery of mobile which was recorded vide PCR Form Ex.PW3/A. Information of the same was sent to police station Kalyan Puri and a DD No.34A Ex.PW8/B SC No.19/2013 State Vs. Monu Page 1 of 18 was recorded in this regard. The said DD was assigned to SI Rahul Rathore (PW8) who reached the spot i.e. Dream Rose Play School where complainant Dinesh Kumar (PW4) met him and produced accused Sonu and knife recovered from him. He got recorded his statement Ex.PW4/A. 3 In his statement, the complainant Dinesh Kumar (PW4) has stated that he was working in Civil Defence. On 31.10.2012 at about 06.45 p.m., he was was going from home to 26 Block Market. When he reached on main road, in front of Dream Rose Play School, he was making a call at his home from his Mobile Phone No.9953259252, make Samsung. In the meanwhile, two boys on a motorcycle came from behind and the pillion rider tried to snatch his mobile phone. The complainant caught the hand of that boy and started running with him while holding his hand. That boy touched the dub of his pant in which probably there was some weapon. Complainant was threatened by that boy either he should leave or he would be killed. That boy passed on the snatched mobile of the complainant to the motorcycle rider. The complainant pulled down the pillion rider from the motorcycle. In the meantime, public persons caught hold that boy and on his search, one knife was SC No.19/2013 State Vs. Monu Page 2 of 18 recovered. The motorcycle rider fled away from the spot with the mobile phone of the complainant. On enquiry, the boy was apprehended revealed his name as accused Monu who was beaten up by the public persons. He disclosed the name of his associate as Beeru @ Gupta.
4 SI Rahul Rathore (PW8) prepared sketch Ex.PW2/A of the knife Ex.P1 and took it into possession vide seizure memo Ex.PW2/B. Beat Constable Ombir (PW2) and HC Rahisuddin (PW5) were called at the spot. Rukka Ex.PW8/A was prepared and Ct. Ombir (PW2) was sent to police station to get the case FIR registered. In the police station, duty officer HC Yatvir Singh registered FIR Ex.PW1/A and made his endorsement Ex.PW1/B on the rukka. Investigation of the case was assigned to SI Rahul Rathore (PW8). Spot was inspected and site plan Ex.PW2/E was prepared at the instance of the complainant. Statement of one eye witness, namely, Satte was recorded who stated that he had witnessed the incident of robbery.
5 Accused Monu was arrested vide arrest memo Ex.PW2/C and his personal search was conducted vide memo Ex.PW2/D. Disclosure statement Ex.PW4/B of the accused was SC No.19/2013 State Vs. Monu Page 3 of 18 recorded. Efforts were made to arrest the coaccused but he could not be arrested. NBW against the coaccused were obtained. 6 After completion of the investigation, charge sheet was filed in the Court of Ld. M.M. who after complying with provisions of section 207 Cr.P.C. committed the case to the Court of Sessions which in turn assigned the case to this Court for trial in accordance with law.
7 After hearing Ld. counsel for accused and Ld. Addl. PP for the State, charges under Section 392/34, 397 IPC and 25 Arms Act were framed against the accused. Accused pleaded not guilty to the charges and claimed a trial.
8 In order to prove its case, prosecution has examined 8 witnesses. PW4 Dinesh Kumar is the complainant, whereas PW6 is the eye witness. PW1 HC Yatvir Singh was the duty officer. PW2 Ct. Ombir and PW5 HC Rahisuddin remained associated in the investigation of the case conducted by IO SI Rahul Rathore (PW8). PW3 Lady Ct. Shalu recorded the PCR call. PW7 Sh. Ramesh Singh proved the notification regarding possession of prohibited knife. 9 After completion of prosecution evidence, statement of accused under section 313 Cr.P.C. was recorded in which he has SC No.19/2013 State Vs. Monu Page 4 of 18 denied the case of the prosecution in toto. He has stated that knife was planted upon him to falsely implicate him. He has stated that he is innocent. He had a quarrel with the complainant at the cigarette shop as got collided with complainant that enraged him, therefore, the complainant and his friends who were also present there gave him beatings and got him falsely implicated in this case in connivance with police. Accused opted not lead any evidene in his defence. 10 I have heard. Ld. Addl. PP for the State as well as Ld. Amicus Curiae for the accused. I have meticulously gone through their submissions and material available on record. Occurrence 11 It is alleged against the accused that on the day of incident he along with his associate committed robbery of mobile phone of the complainant Dinesh Kumar (PW4) when he was making a call. It has been argued by the Ld. Addl. PP for the State that the complainant (PW4) has duly supported the case of prosecution. He has further argued that complainant (PW4) in his testimony has stated that on the day of incident, accused along with his associate came on a motorcycle and snatched the mobile phone of the complainant, but the complainant caught hold of accused Monu at the spot. SC No.19/2013 State Vs. Monu Page 5 of 18 12 On the other hand, Ld. Amicus Curiae has argued that the accused has been falsely implicated in the present case as there was some quarrel between the complainant and accused at cigarette shop due to which accused has been falsely implicated in the present case. He has further argued that apart from oral testimony of the complainant, there is no independent corroboration to the same. Another eye witness, namely, Satte examined by the prosecution has turned hostile and has not supported the case of prosecution. The alleged incident had taken placed in the heavy crowded market but there is no witness to the fact that any robbery had taken place. He has further argued that even there is no evidence on record that the complainant was having any mobile phone at that time which was allegedly robbed by accused.
13 To prove its case, prosecution has examined the complainant Dinesh Kumar (PW4) who is the sole star witness of the prosecution. In his testimony, he has stated that on 31.10.2012 at about 06.45 p.m., he was going to market of 26 Block from his hosue and when he reached near Dream Rose Play School, he was making call from his mobile phone make Samsung to my house. Meanwhile, two boys came on motorcycle from back side and the boy who was SC No.19/2013 State Vs. Monu Page 6 of 18 pillion rider tried to snatch his mobile phone, but the witness caught hold him from his hand. Meanwhile, that boy put his hand on the dub of his pant to take out some weapon and threatened and intimidated him that "mujhe chod de nahin to jaan se hath dho dega" (leave him otherwise he would be killed). Meanwhile, the boy passed over robbed mobile phone of the witness to his associate who was riding the motorcycle and then PW4 caught hold the boy from the call who fell down from the motorcycle. Public persons also gathered and caught hold him. The motorcyclist ran away from the spot. Witness further stated that on formal search of the boy who was pillion rider, one knife was recovered and thereafter, he came to know the name of that boy as Monu and accused Monu disclosed the name of his associate as Beeru. Police was informed and accused Monu was produced before the police along with knife. His statement Ex.PW4/A was recorded. Thereafter, sketch Ex.PW2/A of the recovered knife was prepared and same was seized. He pointed out the spot and site plan Ex.Pw2/E was prepared. Accused Monu was interrogated and his disclosure statement Ex.PW4/B was recorded. He was arrested and his personal search was condcuted vide memos Ex.PW2/C and Ex.PW2/D. Witness identified the knife as Ex.P1 and SC No.19/2013 State Vs. Monu Page 7 of 18 stated that the same was recovered from the possession of accused Monu.
14 During crossexamination, witness (PW4) stated that he had called the police by using mobile phone of his brother Ajay immediately after apprehension of accused. He did not remember if he had stated to the police that he had called the police from the mobile phone of his brother Ajay. He stated that the knife was not recovered from the pocket of accused. He denied that accused did not snatch mobile phone from him. He did not note down the number of motorcycle. He denied that accused was standing near the cigarette shop and had quarrel with some boys and consequently, he was falsely implicated in the present case. He did not remember if any other public person signed as witness on the documents signed by him. However, some public persons were enquired. 15 The prosecution has also examined one alleged eye witness, namely, Satte (PW6). PW6 Satte has deposed that he was residing at H.No.24/105, Trilok Puri, Delhi. He did not remember any date, month or year of any incident as he had not witnessed any incident. However, police had met him and his statement was recorded. He stated that he did not know the accused present in the SC No.19/2013 State Vs. Monu Page 8 of 18 Court. The witness has not supported the case of the prosecution. 16 This witness was declared hostile by the prosecution and was crossexamined by Ld. Addl. PP for the State. During cross examination by Ld. Addl. PP for the State, witness (PW6) has denied that on 31.10.2012 at about 06.3007.00 p.m., he was passing from Dream Rose Play School and was going towards Block 2627, Trilok Puri or that he saw that two boys came from the back side on motorcycle and pillion rider snatched away mobile phone of Dinesh and passed the same to his associate who was riding the motorcycle. He further denied that meanwhile Dinesh apprehended the boy from his collar and dragged him who fell down from motorcycle while the boy who was riding the motorcycle ran away. He further denied that the boy who was apprehended by Dinesh was given beatings by the public persons and his name was revealed as Monu or that on his search, one knife was recovered from him and when the police arrived he was produced with knife by Dinesh. He has further denied that accused made any disclosure statement, however he has admitted that his signatures on seizure memo of knife Ex.PW3/B, sketch Ex.PW2/A of the knife, disclosure statement Ex.PW4/B and on arrest memo, personal search and site plan Ex.PW2/C, Ex.PW2/D and SC No.19/2013 State Vs. Monu Page 9 of 18 Ex.PW2/E respectively. He has stated that he had accompanied the complainant being his friend and he had signed the documents prepared by the police. However, he has added that he had not gone through the documents when he signed. He has denied that knife Ex.P1 was recovered from accused in his presence at the spot when accused was apprehended. He further denied that statement Ex.PW6/A was read over to him.
17 During crossexamination by Ld. Amicus Curiae, witness (PW6) has stated that police obtained his signatures on the above documents when he visited along with his friend and that he was not aware what was written on the documents.
18 The testimony of complainant Dinesh (PW4) does not inspire confidence of the Court for various reasons. There is no independent corroboration to the testimony of the complainant. The complainant has stated that when accused was apprehended, several public persons gathered at the spot who gave beatings to accused. The IO has not made any such public person witness to the incident or to the documents prepared at the spot. He has not issued any notice to any of the public witnesses present at the spot. Case of the prosecution is also that one eye witness Satte (PW6) was also present SC No.19/2013 State Vs. Monu Page 10 of 18 at the spot who had also witnessed the robbery. But the fact remains that this witness Satte (PW6) turned hostile to the case of prosecution and has not supported its case. He has completely demolished the case of prosecution that he had seen the accused committing robbery of mobile phone of the complainant. He has failed to identify accused in the Court being one of the robbers. Though he has admitted his signatures on the documents prepared at the spot, but he has clarified that contents thereof were not read over to him when his signatures were obtained on the same by the police.
19 There is also another damaging factor to the case of prosecution and that is the call made to the police by the complainant. Complainant in his testimony has stated that he had made telephone call to the police about the incident of robbery by using the mobile phone of his brother Ajay. Firstly, there is no mention of any Ajay in the statement Ex.PW4/A of the complainant to the police which was the basis for registration of FIR. Secondly, it is not the case of prosecution that any person by the name of Ajay was present at the spot along with the complainant (PW4). The prosecution has not cited Ajay who was allegedly present at the spot along with the complainant with whose mobile phone, call was made to the police. SC No.19/2013 State Vs. Monu Page 11 of 18 20 Doubt is also cast upon the case of the prosecution in view of the fact that in PCR Form Ex.PW3/A, name of the robber has been mentioned as Rahul along with his parentage. But the fact that the accused booked in the present case is Monu and no explanation has come forward from the side of the prosecution as to who was Rahul whose name was recorded in the PCR call made to the police vide PCR Form Ex.PW3/A. 21 Another glitch in the prosecution case is that there is no evidence on record to show that the complainant was in possession of mobile phone at the time of alleged incident. No documentary proof or otherwise has been produced by either the complainant or the prosecution to establish that the complainant was having mobile phone at the time of alleged incident which was allegedly robbed from him. The prosecution has not filed any call details of the mobile phone allegedly robbed from the complainant along with Cell ID chart to show that the said mobile phone was with the complainant or to show the location of the mobile phone at the spot. 22 Nonrecovery of alleged robbed mobile phone also creates doubt about the case of prosecution. In the entire charge sheet, there is not even a whisper of word to the effect that any effort SC No.19/2013 State Vs. Monu Page 12 of 18 was made by the investigating officer to get recovered the alleged robbed mobile phone. In his statement before the court also, investigating officer (PW8) has also not stated anything to the effect that he made any effort to get the robbed mobile phone recovered. 23 I have gone through the judgment in case of Jahangir Vs. State of Haryana 1996 (2) RCR (Criminal) 433 in which it has been held that it is a cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts and it always rests on the prosecution. Strongest of suspicion does not constitute the proof required. Similar observations have also been made by Hon'ble Apex Court in case titled Krishna Janardhan Bhat Vs. Dattatraya G. Hegde 2008 AIR (SC) 1325.
24 In the present case, the prosecution has failed to establish beyond reasonable doubt that accused committed robbery of mobile phone of the complainant on the day of incident. No public SC No.19/2013 State Vs. Monu Page 13 of 18 person available near the spot has been examined by the IO. Even, no explanation has been furnished by the prosecution for such a lapse. Even otherwise, the testimony of the complainant (PW4) alone does not inspire confidence in view of the fact that another eye witness examined, namely, Satte (PW6) turned hostile and has not supported the case of prosecution. In the present case, even the recovery of alleged robbed mobile phone has not been effected by the police to get it confronted with the complainant during his examination in the Court. So, there casts a reasonable doubt in the story put forth by the prosecution.
25 Consequently, in view of unreliable testimony of the complainant (PW4), prosecution has failed to establish beyond reasonable doubt that accused committed the robbery of mobile phone of the complainant (PW4) on the day of incident or the incident as alleged had taken place. Since the prosecution has failed to establish the commission of robbery as alleged, the recovery of knife from the possession of accused also creates doubt. Nonjoining of independent witness 26 The nonjoining of any independent public witness in the investigation of the case, also casts doubt to the case of the SC No.19/2013 State Vs. Monu Page 14 of 18 prosecution. It is the case of the prosecution that the place of incident was a market place and public persons were present there. 27 As per the testimony of complainant (PW4) himself, the alleged incident of robbery had taken place in the market and when accused was apprehended, several public persons gathered at the spot, but none of them have been joined in the investigation of the present case. From the testimony of the complainant, it has been established that the spot was surrounded by shops as it was a market place and even the public persons were present at the spot, but there is not even a whisper from the mouth of the IO to join any independent witness present at the spot, in the proceedings conducted by him. He had not made any effort to join any public independent witness though present at the spot. The only public person joined in the investigation is PW6 Satte who has not supported the case of prosecution even on a single count.
28 I have gone through the ratio of judgment delivered by Hon'ble Apex Court in case of Hem Raj & Ors. Vs. State of Haryana 2005 AIR (SC) 2110 in which it was held that when the evidence of the alleged eyewitnesses raise serious doubt, the unexplained omission to examine the independent witness, would SC No.19/2013 State Vs. Monu Page 15 of 18 assume significance.
29 In the present case also, no independent public witness was examined or got joined in the investigation conducted by the IO, though available at the spot. No explanation has come forward from the IO as to what prevented him in joining any independent witness in the proceedings.
30 Consequently, in my considered opinion, nonjoining of any independent public witness in the proceedings, creates doubt in the story put forth by the prosecution.
Conclusion 31 The incident of robbery by accused has not been established by the prosecution. The statement of the complainant (PW4) is found to be unworthy of credence as the same is unreliable. The statement of the complainant does not inspire confidence of the Court. Therefore, it is held that the prosecution has failed to prove the incident of robbery against the accused persons beyond reasonable doubt. The statement of the complainant has not been corroborated by any other independent witness. The only independent witness examined by the prosecution is PW6 Satte who has denied entire case of the prosecution.
SC No.19/2013 State Vs. Monu Page 16 of 18 32 The recovery of alleged robbed mobile phone has not been established in the Court. It is the case of prosecution that accused robbed mobile phone from the complainant on the day of incident. First of all, testimony of complainant does not inspire confidence and secondly, no effort has been shown to be made by the investigating officer to get recovered robbed mobile phone of the complainant.
33 The nonjoining of independent public witnesses in the proceedings conducted at the spot creates doubt in the story put forth by the prosecution. It has come in evidence that the place of incident was surrounded by shops as it was a market place, but neither any shopkeeper nor any resident of the vicinity was examined by the investigating officer to corroborate the testimony of the complainant to the effect that any incident of robbery had taken place with him. The sole independent witness examined by the prosecution is PW6 Satte who has turned hostile and has not supported the case of prosecution.
34 The prosecution has failed to prove beyond reasonable doubt the incident of robbery, therefore, no case under Section 397 IPC is also made out against accused. Since the SC No.19/2013 State Vs. Monu Page 17 of 18 prosecution has failed to establish the incident of alleged robbery and the apprehension of accused is in doubt, the recovery of knife from him also casts a doubt.
35 In view of the aforementioned facts and circumstances of the present case, accused Monu is acquitted of the charges framed against them under Section 392/34 IPC as well as under Section 397 IPC and 25 Arms Act. He is directed to comply with the provision of section 437A Cr.P.C.
Announced in the open Court ( P.S. TEJI )
Dated: 09.04.2014 District & Sessions Judge (East)
Karkardooma Courts, Delhi
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