Delhi District Court
State vs . : Uday Singh @ Uday on 14 September, 2021
IN THE COURT OF RISHABH KAPOOR:
METROPOLITAN MAGISTRATE - 03 (CENTRAL)
TIS HAZARI COURTS: DELHI
State Vs. : Uday Singh @ Uday
FIR No : 243/16
U/s : 392/411/34 IPC
P.S. : Rajinder Nagar
JUDGMENT:
1. Criminal Case No. : 8283/2018 2. Date of commission of offence : 16.06.2016 3. Date of institution of the case : 29.06.2018 4. Name of the complainant : State 5. Name of accused, parentage & : Uday Singh @ Uday S/o Sh. Sher Singh 6. Offense complained or proved : 392/34 IPC 7. Plea of the accused : Pleaded not guilty 8. Date on which order was reserved : 28.08.2021 9. Final order : Acquitted 10. Date of final order : 14.09.2021 1 The accused is facing trial for offences u/s 392/34 IPC. The genesis of the
prosecution story is that on 16.06.2016 pursuant to receipt of information vide DD No.57B, the team of police reached the spot of alleged occurrence and they were informed that the accused person was taken to police station by the PCR vehicle. Thereafter, at police station, accused Uday Singh @ Uday alongwith complainant Smt. Indu were present. The accused was stated to be given beatings by public persons and he was accordingly sent to hospital. Pursuant to statement of complainant Smt. Indu, the criminal was set into motion vide registration of the present case FIR against accused. As per the allegations, on 16.06.2016 at around 09:40 pm, when the complainant had reached outside her house bearing no. 4/41, Second Floor, Old Rajinder Nagar, Delhi, then suddenly, out of two persons already present there, one had pushed her away and the other person snatched the gold chain worn by the complainant. One of the person ran away with the gold chain of the complainant and the other person who had pushed her was caught by the public persons present near the spot and was also beaten by said public persons. During the course of investigation, after age verification of accused Uday Singh @ Uday, he was found to be more than 18 years of age on the date of alleged offence and the matter proceeded further. The accused Uday Singh has allegedly disclosed the name of his associate as Nand Lal @ Nandu. Thereafter, as per information given by accused Uday Singh, co- accused Nand Lal @ Nandu was arrested from basement of Hotel Sagar Palace, Rajinder Nagar and recovery of the alleged stolen gold chain was effected from him. Pursuant to age inquiry of Nand Lal @ Nandu, he was found to be less than 18 years old and the proceedings qua him were transferred to concerned Juvenile Justice Board. After completion of investigation, the present chargesheet for trial of accused Uday Singh @ Uday for the alleged offences was submitted in the Court.
2. Thereafter, the cognizance of the offences was taken by the Ld. Predecessor Court and on the basis of material available on record, charges for offences u/s 392/34 IPC were framed against accused to which he pleaded not guilty and claimed trial.
3. In order to establish guilt of the accused, the prosecution has examined six witnesses in all. The accused also admitted certain formal documents u/s 294 Cr.P.C. After prosecution evidence, the statement of accused u/s 313 Cr.P.C was recorded wherein all the incriminating circumstances were put to the accused. The accused did not lead any evidence in his defence.
4. Ld. APP for State has contended that the prosecution has established the guilt of the accused beyond all reasonable doubts with the help of coherent testimonies of the prosecution witnesses, therefore, the accused deserves to be convicted for the alleged offences.
5. Per contra, Ld. LAC for accused has contended that the accused has been falsely implicated in the present case by the complainant and police agency has acted in connivance with the complainant. It is also contended that the accused has been falsely implicated by the complainant on account of quarrel which had taken place between the accused and complainant on the same day and regarding which, the PCR call was also made from the spot. It is also contended that the fact the police has failed to join in any public person during investigation of the case is self explanatory that the accused has been falsely implicated in the present case. With these submissions, prayer has been made for acquittal of accused in the present case.
6. Prior to delving into the merits of contentions advanced on behalf of parties, let us briefly discuss the testimonies of the material witnesses in brief. PW-1 Smt. Indu is the complainant in the present case. She deposed that on 16.06.2016 at around 09:40 pm, when she reached the gate of her house at 4/41, Old Rajinder Nagar, Delhi, two boys came there and pushed her. She further deposed that one of boy robbed her gold chain and fled away from the spot. She further deposed of having raised noise due to which public persons came there and apprehended one of the boy who had pushed her but his associate succeeded to flee away alongwith gold chain. She identified accused Uday Singh as the boy who was apprehended by the public persons. She further deposed that her statement was recorded by police and the accused was also handed over to police. She deposed that site plan Ex.PW1/B was also prepared by the police and accused was arrested vide apprehension memo Ex.PW1/C whereafter his personal search was conducted and personal search memo Ex.PW1/D was prepared. She further deposed that on 17.06.2016, police again asked her to join the investigation, pursuant to which she alongwith police reached at an institute in Old Rajinder Nagar, where accused Uday Singh @ Uday identified his associate Nand Lal @ Nandu and the gold chain was recovered from his possession which was seized by police vide seizure memo Ex.PW1/E. In her cross examination, she admitted that the gold chain was not recovered from possession of accused Uday Singh. She further stated that around 8-10 public persons gathered at the spot at the time of alleged occurrence and that police had made inquiries from said public persons. She further stated that around 5-6 persons were also present in the institute where she had accompanied the police but she could not state about the name of said institute. She denied that accused Uday Singh had misbehaved with her due to which she has implicated him falsely in the present case.
PW-2 Ms. Preeti Kedia is the Incharge of Nigam Pratibha Vidhalaya R-Block, New Rajinder Nagar. She proved on record the attested copy of admission form Ex.PW2/A and birth certificate Ex.PW2/B of accused Uday Singh.
PW-3 Sh. Bhupesh Khanna deposed that in year 2016, he was running an institute in the name and style of Financial Modeling Institute at 47/16 Hotel Sagar Palace basement and at that time, one Nandu @ Nand Lal (since JCL) was working as labour in the institute. He further deposed that on 17.06.2016, 2-3 police officials came alongwith one accused and one lady namely, Indu at his office and the accused who was brought by police had identified Nandu @ Nand Lal. He further deposed that a golden color chain was also recovered from possession of Nandu @ Nand Lal, which was also identified by Smt. Indu. He further deposed that the gold chain was seized by police vide seizure memo Ex.PW1/E bearing his signatures at point B. In his cross examination, he stated that 1-2 students were also present there at that time but police did not make any inquiry from them. He further stated that police also did not ask the neighbors to join the proceedings. He further stated of not knowing accused Uday Singh and also of having not seen him prior to 17.06.2016. He denied that the gold chain was not recovered from possession of Nandu @ Nand Lal in his presence.
PW-4 HC Ajmer deposed that on 16.06.2016, he alongwith IO/SI Ram Pratap reached the spot where the complainant met her alongwith some public persons and her statement was recorded regarding robbery of her gold chain. He further stated that accused Uday Singh was produced by the complainant and it was also stated that his associate fled away from spot alongwith the gold chain. He further deposed that after recording statement of complainant, IO prepared rukka and handed it over to him for registration of case FIR. Thereafter, he went to PS alongwith rukka and got registered the FIR. The copy of FIR alongwith original rukka was returned to IO. IO also prepared site plan Ex.PW1/B. He further stated that accused was also got medically examined. In his cross examination, he could not tell about the fact whether any DD entry was made regarding his departure from police station. He stated that 5-6 public persons were present at the spot and IO recorded their statements. He denied of having not visited the spot with IO. He also denied that he had signed the documents at police station at the instance of IO.
PW-5 SI Ram Pratap is the IO of the present case. He deposed that on 16.06.2016, after receiving DD No. 57B, he alongwith Ct. Ajmer reached the spot where it was transpired that the PCR had taken complainant and alleged person to the police station. Thereafter, he returned to police station where complainant Smt.Indu and accused Uday Singh @ Uday were present. He stated that statement of complainant Ex.PW1/A was recorded by him and thereafter, the present case FIR was registered vide endorsement on rukka Ex.PW5/A. He further deposed that site plan Ex.PW1/B was prepared after inspection of spot at the instance of complainant. The accused was apprehended vide apprehension memo Ex.PW1/C and after age verification of accused, he was arrested vide arrest memo Ex.PW5/B. The personal search of accused was also conducted vide personal search memo Ex.PW1/D. During investigation, accused made disclosure statement Ex.PW5/C on the basis of which his associate Nand Lal @ Nandu was apprehended from the basement of Sagar Palace Hotel. He deposed that Nand Lal @ Nandu was identified by the complainant and upon his interrogation, he made disclosure statement Ex.PW5/D. He further deposed that robbed chain of complainant was recovered from possession of Nand Lal @ Nandu and same was seized vide seizure memo Ex.PW1/E. He deposed that after age inquiry of Nand Lal @ Nandu, he was found to be less than 18 years old on the date of alleged occurrence and report u/s 173 Cr.P.C was presented against him before the concerned Juvenile Justice Board. In his cross examination, he stated that the information regarding theft, snatching, robbery of chain after giving beatings to complainant and regarding apprehension of accused, was received at police station. This witness was also confronted with DD No. 57B dated 16.06.2016 (Ex.PW5DA) and after going through the same, he stated that the fact of snatching and robbery of chain is not mentioned in the said DD entry. He further stated of having not interrogated the PCR officials, who first reached the spot and who had taken the accused to Police station. He stated that no public persons met him at the spot on the first visit. He admitted that the complainant informed him about the beatings given to accused Uday Singh by the public persons. He stated that public persons went away from spot due to which he could not make any inquiry from them. He further stated that the call at 100 number was made by public person but his name was not disclosed during the investigation. He admitted of having not made any inquiry from PCR caller nor cited him as a witness in the present case. He denied that PCR caller has deliberately been not made a witness in the present case as he was an eye witness of the incident of the quarrel between the complainant and accused. He also admitted that the MLC of accused Uday Singh has not been filed by him in the chargesheet. He denied that the time of apprehension of accused has not been deliberately disclosed in the apprehension memo. He denied that the accused has been falsely implicated in the present case.
PW-6 Ct. Neeraj Kumar deposed that during the course of investigation, IO recorded disclosure statement of accused Uday Singh Ex.PW5/C and thereafter, he was arrested vide arrest memo Ex.PW5/B. He further deposed that pursuant to disclosure statement of accused, his associate Nand Lal was apprehended from the basement of Hotel Sagar Palace and he was also identified by complainant Smt. Indu. He further deposed that after interrogation of Nand Lal, his disclosure statement was recorded and the part of robbed gold chain in broken condition was also recovered from his possession, which was seized by IO vide seizure memo Ex.PW1/E. In his cross examination, he denied that accused Uday Singh did not make any disclosure statement and that his signatures were obtained on the blank papers by the IO. He also denied that Nand Lal was not apprehended at the instance of accused Uday Singh.
7. The accused also admitted the contents of FIR No. 243/16 Ex.A-1 and the school record regarding his age Ex.A-2, vide his statement u/s 294 Cr.P.C.
This is the entire evidence on the case record.
8. The allegations against accused are that on 16.06.2016 at around 09:40 pm in front of house no. 4/41, Old Rajinder Nagar, Delhi accused Uday Singh alongwith JCL committed robbery of gold chain of complainant Smt. Indu after pushing her. It is also in the allegations that the accused was apprehended at the spot with the help of public persons by the complainant.
9. The mere perusal of the chargesheet filed by the police would reflect that police had reached the spot after receiving information vide DD No. 57B dated 16.06.2016. The perusal of DD No.57B dated 16.06.2016 Ex.PW5/DA would reflect that said DD entry was recorded regarding the receipt of information with respect to a quarrel which had taken place at the spot of occurrence. The contents of chargesheet would also reflect that accused Uday Singh was caught by the public persons who had also given beatings to him. In this backdrop, it was incumbent on the part of IO to join public persons in the investigation of the case. Even though in her testimony as PW-1, complainant Smt. Indu has stated that the accused Uday Singh alongwith his associate had robbed her gold chain and was caught by the public persons at the spot of occurrence but at the same time, she also stated that around 8-10 public persons were present there at that time. Same is the version PW-4 HC Ajmer who stated that 5-6 public persons were present at the spot. The testimony of PW-4 HC Ajmer suggests that the statement of complainant was recorded by the IO on the spot of occurrence and IO also recorded the statement of the public persons present there at that time. However, the version of IO/SI Ram Pratap examined as PW-5 runs contrary to the version of PW-4. The IO has stated that at the time when he alongwith PW-4 reached the spot, the complainant and accused were already taken to the police station by the PCR Van and the statement of complainant was recorded at police station. IO has also admitted of having not joined any public persons present at the spot. IO has though tried to justify that he could not make inquiry from the public persons as they had already went away but this justification given by the IO does not appear to be plausible. In case of refusal of public persons to join the investigation, IO was having remedies available in law to proceed against said public persons but such course has not been adopted by the IO for the reasons best known to him. IO has also conceded that PCR call was made by a public person but no investigation was made to ascertain his details nor he has been cited as witness in the present case. Further, IO has also admitted of having not filed the MLC of accused alongwith the chargesheet but again, the reason of this omission on the part of IO has remained unexplained. The above discrepancies pointed out in the version of PW4 and PW5 coupled with the omissions on the part of IO, casts doubt on the fairness of the investigation conducted by the police and gives strength to the version of the accused that he has been falsely implicated in the present case on account of a quarrel which has ensued between him and the complainant. The omission to associate the PCR caller in the investigation of the case and also to bring on record the MLC of accused on case file does not appear to be sheer co-incidences and these omissions further casts reasonable doubts on the version put forth by the prosecution and gives strength to the version of accused. It also not out of place to mention that the recovery of alleged gold chain was not effected from the possession of accused Uday Singh and rather same was stated to be effected from his associate Nand Lal @ Nandu (since JCL) pursuant to the alleged disclosure statement made by the accused before the police. It is a settled law that the disclosure statement of accused during the investigation has a limited evidentiary value subject of course, to the provisions of section 25, 26 and 27 of the Indian Evidence Act. The disclosure of accused recorded during the course of investigation by the police is relevant u/s 27 of the Indian Evidence Act only if same is accompanied with discovery of some fact. The recovery of the case property constitutes the discovery of the fact as per the provision of section 27 of the Act. In these given circumstances, it was incumbent on the part of prosecution to establish the recovery of the gold chain of complainant from the possession of Nand Lal @ Nandu (since JCL) with some cogent and reliable evidence so as to fix the liability of accused for the alleged offences by taking aid of section 27 of the Indian Evidence Act. It is worthwhile to mention that PW-3 Bhupesh Khanna has been cited as a witness to the alleged recovery of gold chain from the possession of JCL Nand Lal @ Nandu. This witness has admitted that 1-2 students were also present at institute at the time when the alleged recovery of gold chain was effected from the possession of accused JCL Nand Lal @ Nandu pursuant to his search by the police. It is a matter of record that except PW-3, no other independent public person was cited as a witness to the alleged recovery of gold chain from the possession of JCL Nand Lal @ Nandu. Section 100(4) Cr.P.C. casts a duty upon the police to call upon two or more independent public persons of the locality in which the place of search is situated. It is also incumbent on the part of police to make such independent public persons a witness to the search which has to be conducted by the police. The police has however, failed to join upon the other independent public person at the time when the search of JCL Nand Lal @ Nandu was made, despite availability of said public persons on the spot. These facts further casts serious doubts on the version of prosecution and also create doubts on the credence of the search proceedings of JCL Nand Lal @ Nandu during which the recovery of alleged gold chain belonging to complainant has been stated to be effected. Therefore, accused Uday Singh @ Uday cannot be held liable for the alleged offences even with the aid of section 27 of the Indian Evidence Act.
10. In view of the discussion made above, this Court is of the considered view that the prosecution has failed to establish beyond all reasonable doubts that on the given date, time and place accused Uday Singh @ Uday alongwith his associate Nand Lal @ Nandu (since JCL)committed robbery of gold chain of complainant after pushing her, therefore, accused deserves to be acquitted for the alleged offences. The accused is accordingly is acquitted for offences u/s 392/34 IPC.
11. The bail bonds, if any furnished by accused at the time of commencement of trail stands canceled. Surety, if any stands discharged. Documents, if any shall be returned to its rightful owner as per rules. Endorsement, if any stands canceled. Case property if any, shall be disposed off after expiration of period to assail this judgment and in case of appeal, as per the directions of Ld. Appellate Court. Case file be consigned to record room after due compliance.
(Rishabh Kapoor) MM-03 (Central), THC, Delhi