Delhi District Court
State vs . Seema & Ors. on 27 May, 2022
IN THE COURT OF SH. RAHUL VERMA,
METROPOLITAN MAGISTRATE07, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI.
FIR No. 690/2014
PS - Sunlight Colony
U/s - 394/397/411/34 IPC
State Vs. Seema & Ors.
JUDGMENT
Part A - The list at a glance A. Serial No. of the Case : 89045/2016 B. Date of Commission of offence : 20.10.2014 C. Date of Institution of Case : 14.01.2015 D. Name of the Complainant : Shri Ajay Kumar S/o Shri Inderjeet R/o House No. G285, Village Gazipur, Delhi.
E. Name of Accused : 1. Seema W/o Shri Ajay R/o House No.108, EDM, Bhawapur, Chaudhary Sanjay Ka Makan, Gaziabad, UP (Since PO).
2. Rakesh Kumar S/o Shri Banwari R/o House No. 273, Gali No.14 Gagan Vihar, Bhopura, Gaziabad, UP.
F. Offence complained of : 394/397/411/34 IPC
G. Plea of the accused : Pleaded not guilty.
H. Final Order : Acquitted
I. Judgment reserved on : 18.05.2022
J. Date of judgment : 27.05.2022
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Part B - A brief statement of reasons for the decision (As mandated u/s 355(i) of the Code of Criminal Procedure, 1973.)
1. It is the case of the prosecution that on 20.10.2014, at about 4 AM at Road NH 24, under Yamuna bridge, Sarai Kale Khan, New Delhi, within the jurisdiction of P.S. Sun Light Colony, accused Seema & Rakesh Kumar (alongwith other two or three persons not traced) in furtherance of their common intention, in order to commit theft, wrongfully restrained the complainant Ajay Kumar and dishonestly took away one mobile phone black coloured Nokia and purse containing Rs. 12800/( 12 notes of 1000/ denomination, one note of Rs. 500/ denomiation and three notes of Rs. 100/ denomination), D/L, Adhar Card, PAN card and D/L of the brother of the complainant from the possession of the complainant without his consent. Further, on 20.10.2014 at 273, Gali No. 14, Gagan Vihar, Bhopura, Ghaziabad, UP accused Rakesh Kumar got recovered Rs. 2000/ (2 notes of Rs. 1000/ denomination), which he dishonestly received or retained knowing or having reasons to believe the same to be stolen property and thereby committed offence punishable u/s 392/411/34 IPC. Present FIR was registered on the basis of complaint given by the complainant. After completion of investigation, IO filed the chargesheet for offences punishable u/s. 394/397/411/34 IPC.
2. Upon receiving the chargesheet, cognizance of the offence was taken and the accused persons were summoned by the court. Documents were supplied them in compliance of Section 207 The Criminal Procedure Code, 1973 (hereinafter, referred to as 'Cr.P.C.'). On the basis of material on record, charge under Section 392/411/34 IPC was framed upon the accused persons, to which they pleaded not guilty and claimed trial.
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3. In order to substantiate its case, prosecution has examined the following witnesses:
(i) PW1 Ajay Kumar deposed that on the intervening night of 19/20.10.2014 at about 3 AM he hired an auto in which three to four persons were also inside including the accused Rakesh and accused Seema. He further deposed that after some distance, accused Rakesh offered him to make physical relations with accused Seema sitting in the said auto and thereafter they stopped the auto near bank of Yamuna River. Thereafter, he alongwith accused Seema went towards the bushes near Yamuna River, where auto driver accused Rakesh and two other persons also reached. One of them put a knife on his neck and other co accused held him. Accused Rakesh snatched his purse containing Rs. 12800/ , driving license, Aadhar Cards and PAN Card and other co accused snatched his mobile phone Nokia 0625 from him. Thereafter all of the accused persons started beating him and ran away from the spot. Thereafter, he came to the main road and shouted for help, then the police officials on patrolling duty also reached there and he told them about the incident. Thereafter, the accused Rakesh who was the driver of the said auto was apprehended by the said police official. Thereafter, he went to the PS and IO recorded his statement Ex. PW1/A. IO conducted the personal search of the accused and recovered Rs. 2000/ from the possession of accused Rakesh and IO seized the same vide Ex. PW1/C bearing his signatures. The witness also identified his signatures on the seizure memo Ex. PW1/B of the TSR, arrest memo Ex. PW1/D and personal search memo PW1/E of accused. The witness further deposed that thereafter, he alongwith police official and accused Rakesh went to the Bowapur near Anand State Vs Seema; FIR No. 690/14, PS: Sunlight Colony Page No. 3 of 11 Vihar and the accused Seema was apprehended at the instance of the accused Rakesh. Rs. 850/ was recovered from the accused Seema from her house. IO seized the same vide seizure memo Ex. PW1/F bearing his signatures and he identified the accused Seema there. He also identified his signatures on the arrest memo of accused Seema Ex. PW1/G. He correctly identified both the accused persons. However, he failed to identify auto bearing no. DL 1RN 9723 from its 04 photographs for the reason that at that point of time it was dark. In his examination in chief dated 11.04.2019 he identified his signatures on the panchnama Ex.PW1/I (colly.) but he deposed that he could not say whether the 07 photographs annexed with the panchnama were the same currency noted which were recovered from the accused. In his remaining examination in chief dated 25.01.2020 he deposed that he could not say whether the accused present in court namely Rakesh was one of the said persons who was responsible for the incident. He further deposed that he had told the police that it was dark and he could not see the accused. This witness duly cross examined by Ld. Defence counsel.
(ii) PW2 HC Sajjan Kumar deposed that on 20.10.2014, he was posted as DD writer at PP Sarai Kale Khan. On that day at about 5.05 am one person namely Ajay came to the police post and he told that one TSR driver, one lady and two other persons snatched his mobile phone and purse under Yamuna Pul near bushes. He made a DD entry No. 40 vide Ex. PW2/A (OSR) on the Rojmancha and the same was handed over to HC Man Singh for sending him to the spot alongwith SI Shailender. This witness was duly cross examined by Ld. Defence counsel for the accused.
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(iii) PW3 W.Ct Neetu deposed that on 20.10.14, she joined the investigation with IO/ASI Shailender Singh. Thereafter she alongwith IO, Ct. Narender, Complainant Ajay and accused Rakesh went to H.No.108, Near EDM Mall, Bhauapur, Ghaziabad, U.P. When they reached there at the instance of accused Rakesh, they apprehended the accused Seema and complainant also identified her. IO recorded the disclosure statement of accused Seema. IO registered the case and he conducted her personal search vide memos Ex.PW3/A, bearing her signatures. She correctly identified both the accused persons present in the Court. Thereafter, they came to PS alongwith both the accused persons and IO recorded her statement. This witness was duly cross examined by Ld. Defence counsel for accused.
(iv) PW4 Chanderpal deposed that he was the owner of the auto bearing No.DL1RN9723 and had given the said auto to accused Rakesh for driving on hire basis. He took the said vehicle on superdari Vide Superdarinama Ex.PW4/A. He correctly identified the accused/driver. He also identified auto from its photographs Ex.P1 (colly). This witness was duly cross examined by Ld. Defence counsel for accused.
(v) PW5 HC Man Singh deposed that on 20.10.2014, he received DD no. 40 PP Sarai Kale Khan and HC Sajjan produced the complainant Ajay. He inquired from the complainant about the incident. Thereafter, he alongwith complainant and Ct. Narender went to the spot i.e. NH - 24 near yamuna bridge where he inspected the place of incident and he recorded the statement of complainant Ex.PW1/A. Thereafter, he prepared the rukka Ex.PW5/A and sent it to PS through Ct. Narender. After registration of FIR, present case was State Vs Seema; FIR No. 690/14, PS: Sunlight Colony Page No. 5 of 11 marked to ASI Shailender for further investigation. This witness was duly cross examined by Ld. Defence counsel for accused.
(vi) PW6 Rtd. SI Shailender Singh deposed that on 20.10.2014 the present case was marked to him for investigation. Thereafter, he alongwith Ct. Narender Singh visited the spot ie., near Yamuna Bridge, NH 24 where he met the complainant Ajay Kumar. He enquired him about the incident and prepared the site plan Ex. PW6/A at the instance of complainant. Thereafter, they searched for the accused persons and reached IP Park Gate No.2 where they found one TSR no. DL 1RN 9723 alongwith its driver. Complainant pointed out towards the driver of the TSR and told him that he was involved in the robbery. Thereafter, they nabbed the driver of the TSR who disclosed his name as Rakesh Kumar. During interrogation, the accused revealed the name of accused persons Sonu and Seema and one friend of Sonu involved in the present case. Thereafter, he arrested the accused vide memo Ex. PW1/D and also got conducted his personal search vide memo Ex. PW1/E. Rs.380/ were recovered from his personal search. During interrogation, accused took out Rs.2,000/ from his purse in denomination of Rs.1000/, two currency notes and he seized the same vide seizure memo Ex. PW1/E. He recorded the disclosure statement of accused Rakesh vide memo Ex. PW6/B and seized the TSR bearing no. DL1RN9723 vide memo Ex. PW1/B. Thereafter, accused Rakesh took them to house no.108, Buapur, Gaziabad, UP, where accused Rakesh and complainant pointed out towards accused Seema and disclosed her identity. Thereafter, accused was interrogated through W. Ct Neetu Singh in which accused Seema disclosed that Rs.1000/ fall in her share from the abovesaid recovery and out of the Rs.1000/ she had State Vs Seema; FIR No. 690/14, PS: Sunlight Colony Page No. 6 of 11 only Rs.850/ and she produced the same. Thereafter, Rs.850/ was seized vide memo Ex. PW1/F. Witness further stated that he had inadvertently written Rs.830/ instead of Rs.850/ in the abovesaid seizure memo. Thereafter, accused Seema was arrested vide memo Ex. PW1/G. Her personal search was conducted through W. Ct Neetu Singh and she prepared the personal search memo Ex. PW3/A. Disclosure statement Ex. PW6/C of accused Seema was also recorded. The witness correctly identified the accused Rakesh. He also identified TSR no. DL1RN9723 from its 04 photographs Ex. P1 (colly). He further identified the currency notes which were recovered from accused Rakesh from one xerox copy Ex. P2 containing two currency notes of Rs.1000/. He further identified the currency notes recovered from accused Seema from two xerox copy Ex. P3 containing photographs of three currency notes of Rs.100/ each and one photograph of Rs.500/ and another photograph of Rs.50/. During the investigation, complainant got released the same on superdari. This witness was duly cross examined by Ld. Defence counsel for accused.
4. Vide a separate statement dated 30.07.2015 the accused persons admitted the genuineness of FIR (without contents) Ex.PA1 (colly) registered in the present case.
5. Prosecution evidence was closed vide order dated 28.04.2022.
6. Statement of accused u/s. 313 r/w 281 of Cr.P.C was recorded on 04.05.2022 wherein the accused denied the incriminating evidences appearing against him. The accused refused to lead defence evidence.
7. Subsequently, final arguments from the counsel for accused and Ld. APP for the State were heard.
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8. In the present matter, the accused has been charged for the offences punishable under Section 392/411/34 IPC. Section 392 IPC provides for punishment for offence of robbery. Offence of robbery is defined as under:
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.
9. Section 34 IPC is attracted when a criminal act is done by several persons in furtherance of the common intention of all. In such case, each of such persons is liable for that act in the same manner as if it were done by him alone. Further, Section 411 IPC provides for punishment for dishonestly receiving or retaining stolen property.
10. To bring home the guilt of the accused under Section 392/411/34 IPC, the prosecution has examined total six witnesses, out of which PW1 Ajay Kumar is the star witness and the entire case of the prosecution rests upon him. On his examination in chief dated 17.12.2015, he deposed that on the intervening night of 19/20.10.2014 at about 3 AM he hired an auto in which three to four persons were also inside including the accused Rakesh and accused Seema. He further deposed that after some distance, accused Rakesh offered him to make physical relations with accused Seema sitting in the said auto and thereafter they stopped the auto near bank of Yamuna River.
State Vs Seema; FIR No. 690/14, PS: Sunlight Colony Page No. 8 of 11 Thereafter, he alongwith accused Seema went towards the bushes near Yamuna River, where auto driver accused Rakesh and two other persons also reached. One of them put a knife on his neck and other co accused held him. Accused Rakesh snatched his purse containing Rs. 12800/, driving license, Aadhar Cards and PAN Card. Other coaccused snatched his mobile phone Nokia 0625 from him. He further deposed that thereafter all of the accused persons started beating him and ran away from the spot. He further deposed that when he came to the main road and shouted for help, the police officials on patrolling duty also reached there and thereafter, the accused Rakesh who was the driver of the said auto was apprehended by the said police official. PW1 Ajay Kumar identified accused Rakesh as auto driver. He also identified accused Seema as one of the persons who robbed him. Thereafter, the examination in chief of the PW1 was deferred for want of case property.
11. PW1 was recalled for remaining examination in chief on 25.01.2020 wherein, he turned hostile and deposed that he could not say whether the accused present in court namely Rakesh was the one responsible for the incident. He further deposed that he had told the police that on the day of incident it was dark and he could not see the accused. He also failed to identify the auto involved in the incident. He also failed to identify the currency notes recovered from the accused. In his cross examination, he deposed that he had only signed Ex. PW1/A i.e. the complaint without the contents written on it and that it was blank. He further deposed in his cross examination that he was shown the accused in chowki and on the basis of pointing out by police, he identified him as one of the persons responsible for the offence on his examination in chief dated 17.12.2015. He further deposed that he did not visit the PS except after making Ex.PW1/A.
12. The cumulative effect of deposition of PW1 is that the contents of the State Vs Seema; FIR No. 690/14, PS: Sunlight Colony Page No. 9 of 11 complaint Ex. PW1/A itself are not proved. It is also not proved that the accused Rakesh was one of the persons involved in the robbery. PW1 further failed to identify the auto driven by the accused as the one involved in the robbery. There are no other eyewitnesses on record and all other witnesses are either police witnesses or formal witnesses who had not seen the incident. Clearly, the evidence on record is not sufficient to establish that the accused Rakesh had committed the offence punishable under Section 392/34. Since the PW1 also failed to identify the currency notes recovered from the accused, it has also not been proved that the stolen currency notes recovered from the accused were the same currency notes that were robbed from him. Thus, it is also not established that he is guilty of offence punishable under Section 411 IPC.
13. It is the cardinal principle of criminal law that the prosecution has to prove its case against the accused beyond reasonable doubt. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. It was held by Hon'ble High of Delhi in Jagdish Prasad vs State (Govt Of NCT Of Delhi), (2011) 184 DLT 285, that "it is well settled that in a criminal case, in order to bring home the guilt of the accused, the prosecution is required to establish the guilt beyond a shadow of reasonable doubt. If, on consideration of the prosecution evidence, a reasonable doubt remains in respect of culpability of the accused, he is entitled to benefit of doubt."
14. As already discussed, the star witness of the prosecution PW1 did not support that the case of prosecution against the accused Rakesh. There are no other eyewitnesses to the incident and the remaining witnesses are either police witnesses or formal witnesses.
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15. In view of the above discussion, this court holds that the prosecution has not been able to prove its case against the accused beyond reasonable doubt. Accordingly, accused Rakesh Kumar is hereby acquitted for the offence punishable under section 392/411/34 IPC.
Announced in open court Digitally signed
by RAHUL
RAHUL VERMA
on 27.05.2022 VERMA Date:
2022.05.28
17:25:48 +0530
(RAHUL VERMA)
MM07(SED)/ SAKET COURT/ 27.05.2022
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