Delhi District Court
State vs . Ashok Etc on 18 December, 2015
IN THE COURT OF SH. KAPIL KUMAR, MM-06,
(NORTH)ROHINI COURTS, DELHI
State Vs. Ashok Etc
PS. Adarsh Nagar
1. FIR No. : 218/11
2. Date of Offence : 11.06.2011
3. Name of the complainant : Sachin
S/o Mansha Ram
R/o H. No. 260, Gali no.
2, Manav Kunj,
Mukundpur, Delhi.
4. Name, parentage and Address : 1. Veer Bhadur
of the accused S/o Sh Sher Bhadur
R/o B-24, Gali no.5
Kewal Park, Azad Pur,
Delhi
2. Ashok @ Pappu
S/o Sh Tej Ram
R/o598, Gali no.06,
Jeewan Park, Libas Pur,
Delhi.
3. Nageshwar @ Ashu
S/o Sh Ram Dev
R/o 219, Kewal Park,
Azad Pur, Delhi.
4. Ashok Kumar Yadav
S/o Sh Kishan Dev Yadav
R/o Shanti ka makan,
Kewal Park, Azad Pur,
Delhi. (Since PO)
5. Offences complained of : 392/411/34 IPC
6. Plea of the accused : Pleaded not guilty
7. Date of reserving the order : 11.12.2015.
8. Sentence or final order : Acquitted
9. Date of order : 18.12.2015
10.Unique ID No. : 02404R027832012
JUDGMENT
1. The case of the prosecution against the accused persons is that on 11.06.2011 at about 11.30 PM at road no. 51, Near Delhi Jal Board office, Delhi within the jurisdiction of PS Adarsh Nagar all of them in furtherance of common intention robbed the complainant Sh Sachin of his money and various other articles. It is further case of prosecution against the accused Veer Bhadur that on 30.08.2011 he got recovered mobile phone make Samsung from his house which belongs to complainant Sachin, which the accused Veer Bhadur received and retained the same dishonestly knowing to be the stolen property.
2. After investigation, charge-sheet was filed against the accused persons. The copy of charge-sheet and annexed documents were supplied to accused persons in compliance of Section 207 Cr. P.C. Thereafter Charge under Section 392/34 IPC was framed upon the accused persons to which they pleaded not guilty and claimed trial. A charge U/s 411 IPC was also framed against the accused Veer Bhadur to which he pleaded not guilty and claim trial.
3. In support of its version, prosecution examined 8 witnesses. PW1 is complainant Sachin, PW-2 is HC Ram Ashray, PW-3 is SI Anil Kumar, PW-4 is Ct Vikram, PW-5 Ct Sohanveer Singh, PW-6 is HC Ashraf , PW-7 is ASI Parmod Kumar and PW-8 is SI Narender Kumar.
4. After conclusion of prosecution evidence, statement of accused persons was recorded. Accused persons opted not to lead DE.
5. I have heard Ld. APP for State and Ld Counsel for the accused. I have perused the record.
6. It is the cardinal principle of Criminal Justice delivery system that the prosecution has to prove the guilt of accused person beyond reasonable doubts. No matter how weak the defence of accused is but, the golden rule of the Criminal Jurisprudence is that the case of the prosecution has to stand on its own leg.
7. The charge U/s 392 IPC was framed against all accused persons. Prosecution examined complainant as the only witness qua the offence U/s 392 IPC. PW-1 complainant deposed that on 11.06.2011 at about 11.30 PM he was going to his house at Mukund Pur and when he reached near Delhi Jal Board office to take the Auto some persons came there and pushed him. He fell down on road. Some persons caught hold of his hand and legs from behind and started frisking his pockets. Rs 400/- was taken out from the pocket of complainant and his bag was snatched in which there was cash of Rs 2500, a mobile phone along with some documents. PW-1 further deposed that he managed to un-grip himself and ran towards traffic police pit. He deposed that he had a glimpse of accused persons and all of them were of in age group of 20-25 years. A FIR was registered on the basis of statement which is ExPW1/A. PW-1 further deposed that he was shown some persons in the PS and asked to identify them whether they were those persons who robbed him. PW-1 deposed that he was not able to identify those accused persons. He further deposed that he came to know that his mobile was recovered. He was declared hostile and was cross examined by Ld APP. In the cross examination by Ld APP he denied the suggestion that he identified the accused persons in PS. The attention of witness was drawn towards accused persons by Ld APP and even then PW-1 was not able to identify any of accused persons.
8. The perusal of testimony of PW-1 makes it clear that he was not able to identify accused persons when examined in the court. He declared hostile qua the identification of accused persons and was cross examined by Ld APP. In the cross examination he categorically denied that he identified all the accused persons in the PS. When Ld APP specifically pointed out towards the accused persons present in the court even then the witness was not able to identify accused persons. The testimony of PW-1 is of no avail for the prosecution qua the offence U/s 392 IPC. PW-1 destroyed the case of prosecution qua offence U/s 392 IPC. There is no other witness of the prosecution qua the offence U/s 392 IPC. PW-1 was the sole eye witness qua that but turned hostile qua identification of accused persons. In these circumstances the offence U/s 392/34 IPC not made out against accused persons and thus all of them are acquitted qua offence U/s 392 IPC.
9. Now, coming to the offence U/s 411 IPC for which the charge was framed against accused Veer Bhadur only. The case of prosecution is that during the PC remand of accused Veer Bhadur he got recovered a mobile phone Make Samsung belonging to complainant which he received or retained knowing fully well the same to be stolen property. As above mentioned PW-1, complainant turned hostile qua the identification of accused persons. During examination in chief of PW-1, MHC(M) has produced a polybag containing envelope which contains a black and silver Samsung Mobile Phone, same was shown to the witness. Witness identified the same and mobile phone was exhibited as ExP1. After that MHC(M) produced a card box of the mobile phone was allegedly handed over by the witness to the IO. Witness correctly identified the same also. The same was exhibited as ExP2.
10. PW-1 was cross examined qua ExP1 and ExP2. In cross examination PW-1 deposed that today the phone ExP1 is not having particular identification mark but before the incident the inner screen of phone was cracked and he got the same repaired from a local mobile phone shop and screen was changed with local Chinese screen. PW-1 further deposed in cross examination that he came to know that his phone was recovered on the same day when his statement ExPW1/A was recorded and his mobile phone was shown to him in the PS. He further deposed that he does not have any bill of the phone nor have any documentary evidence to prove his ownership qua phone ExP1 or ExP2.
11. Perusal of testimony of PW-1, who is the star witness of the prosecution, makes it clear that there are several material gaps in his testimony qua the offence U/s 411 IPC also. Firstly PW-1 has not shown any document/bill to prove his ownership over the mobile phone in question. There is naked statement of complainant/PW-1 which does not have any documentary backing. Secondly, PW-1 deposed that he came to know that his mobile phone has been recovered when his statement ExPW1/A was recorded by the police and he was shown his mobile phone in the PS only. ExPW1/A was recorded on 28.08.2011. Accordingly as per testimony of PW-1 he was shown the mobile phone by police officials on 28.08.2011 only in the PS, which in turn suggest that the mobile phone in question was in PS in 28.08.2011. On the other hand the case of prosecution is that accused Veer Bhadur got the mobile phone recovered from his house on 30.08.2011 during on PC remand. If the mobile phone was in PS on 28.08.2011 and the same was already shown to complainant on 28.08.2011 then how the same mobile phone recovered from the house of Veer Bhadur on 30.8.2011. This makes it clear that the mobile phone was planted by the police officials on accused Veer Bhadur on 30.08.2011. This is the material void in the case of prosecution and all the case of prosecution qua offence U/s 411 IPC came under serious cloud of doubt.
12. Moreover, during the testimony of PW-1 the mobile phone was produced in a envelope which was not having any seal. If it is assumed that the mobile phone was recovered from the house of accused Veer Bhadur at his instance during PC remand then why the same was not sealed. Bringing the unsealed case property in the court in a envelope carves out a very strong doubt of tempering with the case property. No explanation has been given as to why the mobile was brought casually in the court without being sealed. The tempering with the case property could not be ruled out. The prosecution is not able to discharge its burden of proof qua offence U/s 411 IPC. Accused Veer Bhadur is acquitted qua the offence U/s 411 IPC also.
13. In view of the above discussion accused persons namely Ashok @ Pappu S/o Sh Tej Ram, Veer Bhadur S/o Sher Bhadur and Nageshwar @ Ashu S/o Ram Dev Sahini are hereby acquitted from all the charges framed against them in the present case.
14. File be consigned to Record Room after due compliance with the liberty to prosecution to revive the same as and when accused Ashok Kumar S/o Kishan Dev Yadav be apprehended.
Announced in the open court (KAPIL KUMAR)
on 18.12.2015. Metropolitan Magistrate-06
North District, Rohini Court
FIR No. 218/11
P. S. Adarsh. Nagar
U/s 392/411/34 IPC
18.12.2015
State Vs. Ashok Etc.
Present: Ld. Sub APP for the state.
Accused persons Ashok @ Pappu and Nageshwar are present on bail, represented by Ld Counsel.
Accused Veer Bhadur produced from JC, represented by LAC.
Accused Ashok Yadav is PO.
Vide separate judgment of even date, announced in open court, accused persons are hereby acquitted from the present case.
Bail bonds as per section 437A Cr.PC taken from the accused persons Ashok @ Pappu and Nageshwar along with their latest photographs and residential proof.
Personal bond of accused Veer Bhadur is accepted in compliance of Section 437 A Cr.PC as he is running in JC in some other case and does not have any surety. Accused persons Veer Bhadur be released from JC, if not required in any other case.
File be consigned to Record Room after due compliance with the liberty to prosecution to revive the same as and when accused Ashok Yadav S/o Sh Kishan Dev Yadav be apprehended.
(Kapil Kumar) MM06, North District Rohini Courts, Delhi 18.12.2015