Delhi District Court
State vs (1) Ankur on 30 July, 2022
-1-
IN THE COURT OF MS. SHEFALI SHARMA: ADDL. SESSIONS JUDGE-02
( NORTH ):ROHINI DISTRICT COURTS : DELHI
In the matter of:-
(Sessions Case No. 57603/2016)
FIR No. 179/2011
Police Station Alipur
Charge sheet filed Under Section 392/394/397/411/34 IPC
Charge framed Under Section 392/394/397/411/34 IPC
State V/s (1) Ankur
S/o Subhash
R/o H.No. 423, Laxmi Vihar,
Burari, Delhi.
(2) Kuldeep
S/o Dalip
R/o VPO Loharwada, PS Charkhidadri
Sadar, District Biwani.
......Accused persons
Date of institution 27.09.2011
Arguments concluded on 26.07.2022
Judgment Pronounced on 30.07.2022
Decision Acquitted
JUDGMENT
BRIEF FACTS
1. Events which set the prosecution machinery into motion is that SC No. 57603/16, FIR No. 179/2011, PS Alipur Page No. 1 of 27 State Vs. Ankur Etc. -2- one Sumit Dahiya made a complaint before the police on 27.05.2011 that he was working as a Bar Tender in Ashoka Hotel and in the intervening night 26/27.05.2011 at about 3.15 a.m. (night) he was returning from his duty and going back to his house in Maruti Swift bearing registration no. HR10-N-8484. That at around 3.15 a.m. when he reached near main GT Road towards Sonipat one i10 car came from behind immediately and obstructed him and stopped their car in front of Maruti Swift. After stopping their car, three persons (one from adjacent seat of the driver and two from the rear seat came down and one person remained on the driver seat of the i10 car. That out of three persons, two came out one of the persons (identified as Ankur) put a pistol on his head and hit its butt and threatened him to hand over the vehicle (Martui Swift) otherwise they would kill him. That another person caught hold of him and the third person bite him with his teeth on the right side of abdomen. He further deposed that the said three persons robbed him of gold chain, mobile phone having SIM No. 987.........07 make Sony Erricson. He further deposed that his purse containing driving lience, credit card were also robbed. That he was also carrying cash of Rs.40,000/- which was robbed. Thereafter, the said three boys sat in his Maruti Swift car and robbed the same by driving it away and the boy who was sitting in i10 car also fled away from the spot.
2. During investigation, the IO also recorded statement of the witnesses and after completion of investigation, charge sheet for the offence u/S. 392/394/397/411/34 IPC was filed in the court.
SC No. 57603/16, FIR No. 179/2011, PS Alipur Page No. 2 of 27 State Vs. Ankur Etc. -3- CHARGE
3. On committal of the case to the Court of Sessions, vide order dated 01.02.2012 charge under Section 392/394/34 IPC against both the accused persons Ankur and Kuldeep was found to be made out and charge under Section 397/411 IPC was also made out against accused Ankur. The formal charge(s) as above were framed on the said date to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. Thereafter, prosecution in support of its case have examined 13 witnesses in all.
5. PW1 Sh. Sumit is the material witness, who deposed that he was working as a Bar Tender in Ashoka Hotel and in the intervening night 26/27.05.2011 at about 3.15 a.m. (night) he was returning from his duty and going back to his house in Maruti Swift bearing registration no. HR10-N-8484. That at around 3.15 a.m. when he reached near main GT Road towards Sonipat one i10 car came from behind immediately and obstructed him and stopped their car in front of Maruti Swift. After stopping their car, three persons (one from adjacent seat of the driver and two from the rear seat came down and one person remained on the driver seat of the i10 car. That out of three persons, two came out one of the persons (identified as Ankur) put a pistol on his head and hit its butt and threatened him to hand over the vehicle (Martui Swift) otherwise they would kill him. That another person caught hold of him and the SC No. 57603/16, FIR No. 179/2011, PS Alipur Page No. 3 of 27 State Vs. Ankur Etc. -4- third person bite him with his teeth on the right side of abdomen. He further deposed that the said three persons robbed him of gold chain, mobile phone having SIM No. 987.........07 make Sony Erricson. He further deposed that his purse containing driving lience, credit card were also robbed. That he was also carrying cash of Rs.40,000/- which was robbed. Thereafter, the said three boys sat in his Maruti Swift car and robbed the same by driving it away and the boy who was sitting in i10 car also fled away from the spot. The witness identified two accused persons out of those four boys as Kuldeep and Ankur.
He further deposed that he made a 100 number call to the police and his statement was recorded as Ex.PW1/A by the police officials from PS Alipur bearing his signatures at point A. He further deposed that he sustained injury on his head due butt of the pistol and also on right side of the abdomen. That he was taken to a government hospital at Narela where his medical examination was conducted. He further deposed that his uncle Ishwar Singh is the registered owner of the car Maruti Swift, which was released to him on superdari and which was exhibit Ex.PW1/Article 1. He also handed over the bills of the mobile phone and gold chain to the IO which were seized vide memo Ex.PW1/B bearing his signature at point A. The photocopy of the mobile phone was marked as Mark PW1/A and the bill of the gold chain as Mark PW1/B.
6. PW2 Sh. Ishwar Singh has deposed that he is the registered owner of Maruti Swift Car bearing registration no. HR10-N-8484 and the same was generally used by his nephew Sumit Dabas. He has proved the SC No. 57603/16, FIR No. 179/2011, PS Alipur Page No. 4 of 27 State Vs. Ankur Etc. -5- superdarinama of the said car as Ex.PW2/A.
7. PW3 Sh. Deepak Wason, the then Ld. MM has deposed that on 29.06.2011 application for TIP of accused Ankur was marked to him, which he proved as Ex.PW3/A. He deposed that accused Ankur refused to join the TIP proceedings and he proved the statement of accused Ankur in this regard as Ex.PW3/B and also his certificate of correctness as Ex.PW3/C. He also proved the TIP proceedings as Ex.PW3/D.
8. PW4 Dr. Rajesh Kumar has deposed that on 27.05.2011 he was working as CMO at SRHC Hospital, Narela and on that day he examined the patient Sumit Dabas and on local examination found the following injuries:
i. One contusion over right parietal region.
ii. Tooth bite mark right iliac region.
iii. Bruise over upper lip left side.
iv. Multiple nail marks over chest, neck and upper back.
He opined the nature of injury as 'simple blunt' and proved the MLC as Ex.PW4/A. He has proved his opinion as Ex.PW4/B.
9. PW5 ASI Suraj Bhan was the duty officer at the relevant time at PS Alipur. He deposed that on 27.05.2011 at about 3.40 a.m. he received an information regarding robbing of Maruti Swift Car bearing registration no. HR10-N-8484. He recorded the said information vide DD No.4A and proved SC No. 57603/16, FIR No. 179/2011, PS Alipur Page No. 5 of 27 State Vs. Ankur Etc. -6- the attested copy of the same as Ex.PW5/A. He further deposed that on the same at about 5.00 a.m. Ct. Karam Singh gave him a rukka endorsed by SI Sandeep for registration of the FIR and he registered the FIR bearing no. 179/2011 and proved the same as Ex.PW5/B. He also proved his endorsement Ex.PW5/C made on the rukka.
10. PW6 Sh. Vishal Singh, the then Ld. MM has deposed that on 01.07.2011 application for TIP of accused Kuldeep was marked to him, which he proved as Ex.PW6/A. He deposed that accused Kuldeep refused to join the TIP proceedings and he proved the entire TIP proceedings as Ex.PW6/B. He also proved the copy of the application, moved by the IO for obtaining copy of the TIP proceedings as Ex.PW6/C.
11. PW7 Ct. Karam Singh has deposed that on the intervening night of 26/27.05.2011, he was on emergency duty with SI Sandeep and on receipt of call, they went to 80 foota road, GT Road, going towards Sonipat, where they met complainant Sumit, who gave his statement to SI Sandeep. SI Sandeep made endorsement on rukka and handed over to him for registration of the FIR, which he took to the PS. He came back at the spot along with copy of the FIR and complainant was taken to SRHC Hospital for his medical examination.
12. PW8 Ct. Sanjeev, who deposed that on 29.06.2011 he has joined the investigation of the present case along with SI Dinesh. He has proved the SC No. 57603/16, FIR No. 179/2011, PS Alipur Page No. 6 of 27 State Vs. Ankur Etc. -7- arrest memo of accused Ankur as Ex.PW8/A, disclosure statement as Ex.PW8/B. He further deposed that accused Ankur refused to join the TIP proceedings. That accused Ankur has pointed out the place of occurrence and he proved the same as Ex.PW8/C. He further deposed that they made efforts for search of other accused Sunny and Balwan but they could not be found.
13. PW9 Retd. SI Dharambir deposed that on 16.06.2011 he was posted at PS Samlkha as SI and on that day, he arrested accused Kuldeep in case FIR No. 385/11, PS Samalkha. On 21.06.2011 he obtained the police custody remand of accused Kuldeep, who made disclosure statement with respect to case FIR No. 179/11, PS Alipur. He further deposed that at the instance of accused Kuldeep, they reached at Auto Market, Bhiwani in front of shop of one Vinod Yadav, where at instance of accused Kuldeep they recovered one Maruti Swift Car without number plate and taken the same into possession. Thereafter, they came back to PS and PW9 informed the concerned IO of the present case. Seizure memo of car mark PW9/B.
14. PW10 HC Subhash deposed on the same lines as that of PW9 Retd. SI Dharambir as he remained with him during the investigation on 16.06.2011, while he was posted as constable at PS Samalkha.
15. PW11 SI Sandeep Tushir is the first investigating officer of the present case and has deposed that on the intervening night of 26/27.05.2011, on receipt of DD No.4A he along with Ct. Karam Singh went to 80 foota road, SC No. 57603/16, FIR No. 179/2011, PS Alipur Page No. 7 of 27 State Vs. Ankur Etc. -8- GT Road, going towards Sonipat, where they met complainant Sumit, who gave his statement and he made endorsement Ex.PW11/A, prepeared rukka and handed over to Ct. Karam Singh him for registration of the FIR. He further deposed that in the meanwhile, he make inquiries from the complainant, who informed him that he was hit with butt of pistol, beaten and assailant bite him.
He further deposed that Ct. Karam Singh came back from the police station along with copy of FIR and handed over to him for further investigation. He recorded the supplementary statement of the complainant and prepared site plan Ex.PW11/B at the instance of the complainant. He further deposed that efforts were made to trace the assailants but no clue was found. Complainant was taken to Hospital for his medical examination.
16. PW12 SI Gaurav has deposed that on 25.07.2011, while posted at PS S.P. Badli, he arrested accused Ankur in case FIR No. 192/2011, U/s 395/365/482/411 IPC. He informed the duty officer that accused Ankur along with his associates namely Kuldeep, Sunny and Balwan had snatched a Maruti Swift Car fom 80 futa road, near red light signal. He handed over the photocopy of the disclosure statement of accused.
17. PW13 SI Dinesh Dahiya is the second investigating officer of the case, who deposed that on 29.05.2011, further investigation of the present case was marked to him. That on 30.05.2011, he obtained the ownership status of the robbed vehicle bearing registration no. HR-10N-8484, which was found registered in the name of father of the complainant namely Ishwar Singh.
SC No. 57603/16, FIR No. 179/2011, PS Alipur Page No. 8 of 27 State Vs. Ankur Etc. -9- He further deposed that on 27.06.2011, after receiving information of arrest of accused Ankur in case FIR No. 192/11, PS S.P. Badli, he went to the court and moved an application for production of accused, which was listed for 29.06.2011. He further deposed that on 29.06.2011, he moved an application for interrogation and arrest of accused Ankur and subsequently, he interrogated and arrested accused Ankur in the present case. He also recorded the disclosure statement of accused Ankur.
He further deposed that he moved an application before Ld. MM for TIP of accused Ankur but accused refused to participate in TIP proceedings. He also obtained the PC remand of accused, who pointed out the place of occurrence.
He further deposed that on 01.07.2011, he along with Ct. Mahasher went to court and moved an application before Ld. MM for interrogation and arrest of accused Kuldeep, which was allowed and subsequently after interrogation, he arrested the accused Kuldeep vide arrest memo Ex.PW13/A. He also proved the disclosure statement of accused Kuldeep as Ex.PW13/B. He further deposed that he moved an application before Ld. MM for TIP of accused Kuldeep but accused refused to participate in TIP proceedings. He has proved the TIP proceeding of accused Kuldeep as Ex.PW13/C. He also obtained the PC remand of accused, who pointed out the place of occurrence vide pointing out memo Ex.PW13/D. He further deposed that on 02.07.2011 he recorded the supplementary statement of complainant. That on 09.09.2011 he collected the photocopy of bills of mobile phone and chain of complainant and seized the SC No. 57603/16, FIR No. 179/2011, PS Alipur Page No. 9 of 27 State Vs. Ankur Etc. -10- same vide memo Ex.PW1/B. That on 13.09.2011 he moved an application for subsequent opinion with regard to injury sustained by the complainant, who opined "it is usually unlikely that a toy gun butt can cause such type of injury". He further deposed that Ct. Vikas gave certificate under Section 65B of Indian Evidence Ex.PW13/E regarding feeding of contents of rukka in the computer. Thereafter, he concluded the investigation and filed the charge sheet in the court.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C
18. After closure of PE, the statement of the accused Ankur and Kuldeep was recorded u/s 313 Cr.P.C. on 01.11.2019, wherein they denied all the evidence put to them and stated that they have been falsely implicated in the present case only to show his efficiency by the IO, in collusion with the complainant. That they are innocent.
Both the accused persons chose to lead any defence evidence in their defence but vide their joint statement dated 18.11.2019 both the accused persons closed their DE without leading any defence evidence.
19. Thereafter, matter was fixed for final arguments.
ARGUMENTS
20. I have heard Sh. Harvinder Nar, Ld. Addl. PP for the State and Sh. Dharamraj Ohlan, Ld. counsel for the accused Ankur and Ms. Poonam Mahajan, ld. Counsel for accused Kuldeep.
SC No. 57603/16, FIR No. 179/2011, PS Alipur Page No. 10 of 27 State Vs. Ankur Etc. -11-
21. It was argued by Ld. Addl. PP that the allegations levelled against the accused are of serious nature and complainant has proved his case vide his testimony as PW1.
It was further argued that all the police officials have clearly proved the chain and the manner of investigation and merely because the witnesses are police officials their testimony cannot be disbelived and for this reliance is placed on the case of Girija Prasad Vs. State of M.P. (2007) 7 SCC
625.
22. Sh. Dharamraj Ohlan, Ld. counsel for the accused Ankur and Ms. Poonam Mahajan, ld. Counsel for accused Kuldeep have argued that accused persons have been falsely implicated. It was argued on behalf of ld. Counsel for accused Ankur that the alleged pistol was never recovered or seized by the IO. That the testimony of PW1 is completely improvised viz a viz his original complaint Ex.PW1/A on material aspects. That there is no public witness who has been examined.
As regards the accused Kuldeep, it has been argued in addition that the recovery of Maruti Swift car has been falsely planted upon the accused. That the injuries in the MLC do not corroborate the version of the complainant. Both the ld. Counsels argued that accused have been falsely implicated in the present case by the complainant and the prosecution has failed to prove the case beyond reasonable doubt. Accordingly, both the accused persons deserve acquittal.
SC No. 57603/16, FIR No. 179/2011, PS Alipur Page No. 11 of 27 State Vs. Ankur Etc. -12-
23. I have heard the arguments at length and perused the entire record.
FINDINGS
24. The accused Ankur and Kuldeep had been charged for the commission of offence punishable under Section 392/394/34 IPC. Accused Ankur has also in addition been charged for the commission of offence under Section 397 IPC. Accused Kuldeep has also in addition been charged for the commission of offence under Section 411 IPC.
25. The relevant Sections are reproduced as under :
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 committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years".
SECTION 394 IPC "If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with [imprisonment for life], or with rigorous imprisonment for a term which SC No. 57603/16, FIR No. 179/2011, PS Alipur Page No. 12 of 27 State Vs. Ankur Etc. -13- may be extend to ten years, and shall also be liable to fine".
SECTION 397 IPC "If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years".
SECTION 411 IPC "Whosoever dishonestly receives 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".
SECTION 34 IPC "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone".
PRESUMPTION OF INNOCENCE
26. It is a settled law of criminal jurisprudence that a person is SC No. 57603/16, FIR No. 179/2011, PS Alipur Page No. 13 of 27 State Vs. Ankur Etc. -14- believed to be innocent till the guilt is proved against him. This principle is called The Presumption of Innocence. In another words, the accused is entitled to take advantage of reasonable doubt in respect of his crime. The principle finds its genesis in the Declaration of Human Rights under Article 11 Section 1 incorporated by the United Nations in 1948. It is also mentioned in the European Convention for the Protection of Human Rights in Article 6 Section 2 and United Nations International Covenant on Civil and Political Rights under Article 14, Section 2.
Presumption of Innocence is a re-statement of the rule that in criminal matters the prosecution has the burden of proving guilt of the accused in order to be convicted of the crime of which he is charged.
In Chandrashekhar Vs. State of Himachal Pradesh decided on 06.07.2018 relying on judgment of Data Ram Singh Vs. State of UP passed by the Hon'ble Supreme Court on 06.02.2018, it was held that:
"the freedom of an individual is utmost important and cannot be curtailed specially when guilt if any, is yet to be proved. It is settled law that till such time guilt of a person is proved, he is deemed to be innocent........ A fundamental postulate of criminal juris prudence is a presumption of innocence meaning thereby that a person is believed to be innocent until found guilty..........
Thus, the inference which is culled out from the above is that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt.
27. In this backdrop, I proceed to delve upon the evidence adduced on behalf of the prosecution.
SC No. 57603/16, FIR No. 179/2011, PS Alipur Page No. 14 of 27 State Vs. Ankur Etc. -15- MATERIAL WITNESS/COMPLAINANT
28. The prosecution has heavily relied upon the testimony of PW1 i.e. complainant himself and a material witness. PW1 deposed that he was working as a Bar Tender in Ashoka Hotel and in the intervening night 26/27.05.2011 at about 3.15 a.m. (night) he was returning from his duty and going back to his house in a Maruti Swift bearing registration no. HR10-N-8484. That at around 3.15 a.m. when he reached near main GT Road towards Sonipat one i10 car came from behind immediately and obstructed him and stopped their car in front of Maruti Swift. After stopping their car, three persons (one from adjacent seat of the driver and two from the rear seat came down and one person remained on the driver seat of the i10 car. That out of three persons, two came out one of the persons (identified as Ankur) put a pistol on his head and hit its butt and threatened him to hand over the vehicle (Martui Swift) otherwise they would kill him. That another person caught hold of him and the third person bite him with his teeth on the right side of abdomen. He further deposed that the said three persons robbed him of gold chain, mobile phone having SIM No.
987.........07 make Sony Erricson. He further deposed that his purse containing driving lience, credit card were also robbed. That he was also carrying cash of Rs.40,000/- which was robbed. Thereafter, the said three boys sat in his Maruti Swift car and robbed the same by driving it away and the boy who was sitting in i10 car also fled away from the spot. The witness identified two accused persons out of those four boys as Kuldeep and Ankur.
He further deposed that he made a 100 number call to the police SC No. 57603/16, FIR No. 179/2011, PS Alipur Page No. 15 of 27 State Vs. Ankur Etc. -16- and his statement was recorded as Ex.PW1/A by the police officials from PS Alipur bearing his signatures at point A. He further deposed that he sustained injury on his head due butt of the pistol and also on right side of the abdomen. That he was taken to a government hospital at Narela where his medical examination was conducted. He further deposed that his uncle Ishwar Singh is the registered owner of the car Maruti Swift, which was released to him on superdari and which was exhibit Ex.PW1/Article 1. He also handed over the bills of the mobile phone and gold chain to the IO which were seized vide memo Ex.PW1/B bearing his signature at point A. The photocopy of the mobile phone was marked as Mark PW1/A and the bill of the gold chain as Mark PW1/B. At the very outset, I proceed to discuss the first complaint given by the injured i.e. complaint Ex.PW1/A which set the prosecution machinery into motion. He had stated that on the given day i.e. 27.05.2011 at around 3.15 a.m. he was on his way to Sonipat after coming back from his duty as bar tender from Ashoka Hotel. He was on his way towards Sonipat driving his Maruit Swift car bearing no. HR10-N-8484. Suddenly, one i-10 car obstruct his way, as soon as he got down and reached near the said car, he realised that three boys approaching his Maruti Swift Car and one of boy had hung a pistol on his left upper leg, seeing which the complainant had got stunned and virtually freezed (sun reh gaya) and he saw three boys sat in his car and one boy having pistol sat on the driver seat and fled away with his Maruit Swift Car. He also alleged that there was mobile phone of brand Sony Erricson, driving licence, credit card of HDFC Bank, ATC card of ICICI Bank, Indian SC No. 57603/16, FIR No. 179/2011, PS Alipur Page No. 16 of 27 State Vs. Ankur Etc. -17- Bank and SBI Bank, cash of around Rs.40,000/- and one gold chain (30 gms), hotel ID card which were in the car were also robbed of. Here it is important to cull out the relevant version of the complainant in his original complaint wherein he stated that he saw three persons near the car one of whom was wearing a pistol on his left upper leg and merely by seeing them he got stunned. That all the alleged stolen articles were lying in the car which was robbed of as they took the car away. Thus, what transpires from his complaint recorded on the same day of incident, is that there was no occasion of any physical interaction or resistance or any injury having been sustained by the complainant.
However, there is material improvisation in his testimony as he entered the witness box as PW1.
In his testimony as PW1 he deposed that "after stopping the car, three persons, one from the adjacent seat of the driver seat and two from the rear seat came down. Out of the said three persons, one person put the pistol on his head and also hit the butt of the said pistol on his head. Another person caught hold of him and third person bitten him by teeth on the right side of his abdomen. He categorically deposed that he had sustained injuries on his head by the butt of the pistol and also teeth mark injury on the right side of his abdomen by one of the accused who is still absconding and accused Kuldeep held him from behind. He categorically mentioned that accused Ankur had hit the butt of his pistol on his head. This is a material improvisation from his earlier version as the complainant did not speak of any injury being sustained during the incident. He had specifically stated that he had seen from a distance SC No. 57603/16, FIR No. 179/2011, PS Alipur Page No. 17 of 27 State Vs. Ankur Etc. -18- that pistol was hanging on the left side of upper leg of the accused and there is specific allegation of putting the pistol on his head and also hitting it butt finds no mention in his original complaint recorded on the same day of the incident.
29. Further, the allegation that one of the accused persons Kuldeep caught hold of him and third person (not arrested) had bitten him with teeth is a material improvisation since from his original complaint, it transpires that there is no physical interaction between the complainant and accused persons and rather there was no occasion of physical resistance being offered by the complainant as he himself stated that he was virtually "freezed" (sann reh gaya) when he saw by three accused persons. The said overt act attributed to the accused is material improvisation and remains unexplained as to why the complainant did not mention the same in his complaint Ex.PW1/A i.e. on the first version which was recorded on the same day of the incident.
30. There was an allegation that accused Ankur had also threatened to hand over the vehicle otherwise he would fire at him and kill him. This again is a material improvisation in his statement viz a viz of his original complaint.
31. Moreover, as per the original complaint Ex.PW1/A the alleged gold chain and cash and other articles were lying in the car which was allegedly taken away by the accused persons. However, in his cross-
examination on behalf of ld. Counsel for accused Ankur, he categorically admitted that mobile phone and other articles were on his body and they were not kept on the dashboard of the car. Relevant part of his cross examination is SC No. 57603/16, FIR No. 179/2011, PS Alipur Page No. 18 of 27 State Vs. Ankur Etc. -19- reproduced herein for the sake of clarity:
"the chain mobile phone and currency were on my body and they were not kept on the dashboard of the car"..............................
If that be so, then his testimony recorded on 19.03.2012 appears to be totally concocted and improvised when he himself stated that he saw the accused persons at a distance got "stunned" seeing them near his car. There was no occasion of any physical resistance or possibility of him being hurt. Then version of complainant also does not correspond to the alleged injuries.
PUBLIC WITENSS
32. It is pertinent to mention that there is no public or any other independent witness, who has been examined despite the fact that the complainant has admitted that the alleged incident happened has a lot of roadside dhabas which remained opened throughout the night. There are no efforts by the investigating agency to procure any CCTV footage of the alleged incident.
Neither any public witness had been joined at the time of alleged recovery of weapon of offence nor examined by the prosecution. There must have been number of persons in the dhabas when the alleged incident happened. He stated to have taken help from a truck driver to call the police. But no such persons is examined. Also at the time of procedure of alleged recovery of weapon of offence but there appears to be no sincere efforts were made by police officials concerned to join independent public witnesses in the SC No. 57603/16, FIR No. 179/2011, PS Alipur Page No. 19 of 27 State Vs. Ankur Etc. -20- concerned police proceedings at any of the available stages. In this regard reliance is being placed on the following judgments:-
In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:-
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner". "4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the SC No. 57603/16, FIR No. 179/2011, PS Alipur Page No. 20 of 27 State Vs. Ankur Etc. -21- investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
33. PW7 Ct. Karam Singh in his cross-examination recorded on 04.07.2016 categorically admitted that during the course of recovery of the Maruti car public persons were present but no notice in writing was served to the public persons, who refused to join the investigation.
MEDICAL/FORENSIC EVIDENCE
34. PW4 Dr. Rajesh Kumar, CMO deposed regarding the MLC Ex.PW4/A and opined the nature of injury as simple blunt. At this stage, it is pertinent to note that the injuries which reflect that there were multiple nail marks over the chest, neck and upper back. There was also a tooth bite mark on the right over iliac region (upper hip).
The prosecution has failed to prove what kind of injury was inflicted if at all by which accused since on one hand complainant deposed that there was no occasion of any physical interaction with the accused persons and he had freezed on the spot and on the other had he had stated that one of the accused persons held him from behind and other hit him with a pistol butt on his head. Even if that be so, for the sake of arguments, it is highly improbable that the accused persons would also inflict nail marks or a tooth bite while SC No. 57603/16, FIR No. 179/2011, PS Alipur Page No. 21 of 27 State Vs. Ankur Etc. -22- committing the alleged robbery if they have already apprehended the complainant. There is no DNA analysis regarding the tooth bite to show that the same was done by the accused persons.
The medial forensic opinion Ex.PW4/B relied by the prosecution itself, reflects that initially the complainant stated that he was hit with the butt of the pistol but later during interrogation, he revealed that it was merely a toy gun. The said gun/alleged weapon of offence was never recovered. It was opined by the concerned doctor that it is unlikely that a toy gun butt can cause such type of injury. Thus, the version of the complainant is highly improbable and the injuries in the MLC do not prove beyond reasonable doubt to have been inflicted by the accused persons.
ALLEGED WEAPON OF OFFENCE
35. The pistol in question was never seized or recovered. The complainant initially stated that he sustained head injury due to the butt of the pistol but later stated that it was toy gun. The subsequent opinion given by the doctor that it is unlikely that a toy gun butt can cause such type of injury, in the report Ex.PW4/B as discussed above, does not support the case of the prosecution and cannot be relied upon solely to prove the guilt of the accused. And as such, the prosecution has failed to prove that it was the accused Ankur who had used the alleged pistol while committing the alleged robbery. No fingerprint of DNA of accused Ankur were lifted.
Further, three contradictory versions which have come forth. Firstly, the complainant in his original complaint Ex.PW1/A stated that there SC No. 57603/16, FIR No. 179/2011, PS Alipur Page No. 22 of 27 State Vs. Ankur Etc. -23- was a pistol being hung by one of the accused persons on his left leg and merely by seeing the gun, the complainant got freezed and there is no mention of aiming the gun by any of the accused or any injury being sustained by the complainant at all. Thereafter, in the charge sheet, it was alleged that accused persons used a toy gun. Thirdly, the complainant in his examination in chief as PW1 did not mention the word "toy gun" and stated that it was a pistol and butt of the pistol was hit on his head. There is no mention of any injury being sustained by the complainant in his earlier statement and only on the supplementary statement recorded on 27.05.2011, the complainant mentioned of his injuries. There is no explanation afforded as to why the complainant did not mention of any injury being sustained by him in his first version recorded immediately after the incident.
ALLEGED STOLEN ARTICLES
36. Further, no documentary evidence has been placed on record to show the possession of alleged gold chain and the amount of Rs.40,000/- i.e. stolen articles with the complainant before the incident. In his cross- examination recorded on 29.03.2012, the complainant PW1 has categorically admitted that the purchase bill of gold chain is merely on a hand written plain paper and not on the letter head of any jeweller. He further admitted that the jewellery purchase bill was merely a photocopy Mark PW1/B and the name of jeweller had been written subsequently with blue ink pen. It is further admitted that the original bill does not mention the name of the jeweller. It is further admitted the bill does not bear the signature of the jeweller. Even the SC No. 57603/16, FIR No. 179/2011, PS Alipur Page No. 23 of 27 State Vs. Ankur Etc. -24- date on the said alleged bill was under cloud as the same appeared to be of 16.01.2004 and not of 16.01.2011 as was contended by the complainant. Admittedly, neither the gold chain nor the mobile phone were recovered. Also the manner of alleged robbery is under cloud as discussed above since at one instance the complainant said that the articles were lying on the dashboard of the car and another contradictory stand that they were robbed from his body/person.
RECOVERY OF CAR
37. PW10 HC Subhash deposed on the same lines as that of PW9 Retd. SI Dharambir as he remained with him during the investigation on 16.06.2011, while he was posted as constable at PS Samalkha. PW11 SI Sandeep Tushir is the first investigating officer of the present case and has deposed that on the intervening night of 26/27.05.2011, on receipt of DD No.4A he along with Ct. Karam Singh went to 80 foota road, GT Road, going towards Sonipat, where they met complainant Sumit, who gave his statement and he made endorsement Ex.PW11/A, prepeared rukka and handed over to Ct. Karam Singh him for registration of the FIR. He further deposed that in the meanwhile, he make inquiries from the complainant, who informed him that he was hit with butt of pistol, beaten and assailant bite him.
He further deposed that Ct. Karam Singh came back from the police station along with copy of FIR and handed over to him for further investigation. He recorded the supplementary statement of the complainant and prepared site plan Ex.PW11/B at the instance of the complainant. He SC No. 57603/16, FIR No. 179/2011, PS Alipur Page No. 24 of 27 State Vs. Ankur Etc. -25- further deposed that efforts were made to trace the assailants but no clue was found. Complainant was taken to Hospital for his medical examination.
In his cross examination PW10 admitted that the alleged robbed Swift car had been recovered from an auto market Bhiwani which was lying in front of shop of one Vinod Yadav. Admittedly, the said shop-keepers had not been cited as a witness. The recovery/seizure memo Mark PW9/B does not bear the signature of any independent witness to the recovery. It is highly improbable that in a busy auto market, the IO did not find any independent witness or there is nothing to suggest that he gave a notice to those, who refused to join the investigation Further, PW10 admitted in his cross examination that that car was unlocked at time of recovery. He did not remember who drove the car after the recovery from the spot to the PS. There is nothing to suggest how he procure the car keys. There was no crime team or photographer nor any videography was done of the alleged recovery. The recovery of the alleged car is accordingly highly suspicious and creates doubt in the prosecution story.
There is no independent witness to the alleged recovery. At this stage reliance is placed on the following landmark judgments by the Hon'ble Superior Courts.
In the landmark judgment of State (NCT of Delhi) Vs. Sunil 2001 SCC, (Cri) 248, the Hon'ble Supreme Court held that:
"when discovery is made pursuant to any facts deposed by the accused, the discovery memo prepared by the IO is necessarily attested by the independent witnesses but if no witness is present, it is difficult to lay down as a proposition that the recovery must be tainted or that or unreliable. But SC No. 57603/16, FIR No. 179/2011, PS Alipur Page No. 25 of 27 State Vs. Ankur Etc. -26- in such a situation, the court has to consider the report of the IO on its own merits".
In Mani Vs. State of Tamilnadu decided on 08.01.2008, the Hon'ble Supreme Court, it has been held that:
"Discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon discovery".
In the case of Naveen kumar Verma Vs. State (Govt. of NCT of Delhi) decided by Hon'ble High Court of Delhi on 03.07.2013 relying on the landmark judgment of Mohd. Jabbar Vs. State decision 21.05.2010 Crl. A. 1022/18, it has been reiterated that:
"The courts have to be cautioned and to vigilant against the non practice of the police to plaint ordinary objects on the accused persons to prove access by the accused to the place where the crime was allegedly committed".
In Prabhu Vs. State AIR 1963, Supreme Court 1113, recovery of a blood stained shirt and a dhoti as also on an axe on which human blood was detected was held to be a weak evidence as was also held in the case of Narsinghbhai Prajapati Etc. Vs. Chatrasingh & Ors. AIR 1977 Supreme Court 1753, where recovery of a blood stained shirt and a dhoti and also a dharia (weapon of offence) were held to be a weak evidence.
In the case of Surjit Singh Vs. State of Punjab AIR 1994 Supreme Court 110, the watch of the deceased and a dagger stained with the blood of the same group as that of the deceased was held to be weak evidence.
38. The remaining witnesses were formal police witnesses who SC No. 57603/16, FIR No. 179/2011, PS Alipur Page No. 26 of 27 State Vs. Ankur Etc. -27- merely deposed regarding the manner of investigation.
CONCLUSION
39. Thus, in view of the aforesaid findings, since there are material contradictions and improvisations in the testimony of the only material witness PW1 (complainant) and his version being untrustworthy, absence of any other public witness and the recovery of the alleged car not only being weak piece of evidence but highly doubtful and apparently made out to fill up lacunae in the prosecution case as discussed at length above, there is no hesitation in holding that the prosecution has failed to prove its case beyond reasonable doubt and accordingly both the accused Ankur and Kuldeep stand acquitted of the charges levelled against them.
40. File be consigned to record room after due compliance.
Dictated and announced in the open (Shefali Sharma) Court on 30.07.2022 Addl. Session Judge-02 (running in 27 pages) (North), Rohini Courts/Delhi SC No. 57603/16, FIR No. 179/2011, PS Alipur Page No. 27 of 27 State Vs. Ankur Etc.