Delhi District Court
State vs Shivam on 3 May, 2024
IN THE COURT OF MS. BHARTI BENIWAL,
METROPOLITAN MAGISTRATE-11, DWARKA COURTS, DELHI
FIR No.218/2017
PS Janakpuri
U/s 392/411 IPC
State Vs. Shivam &Ors.
CNR No. : DLSW0203337822017
Cr. Case No. : 9100/2017
Date of institution of the case : 24.11.2017
Date of commission of offence : 02.06.2017
Name of the complainant : Ravi Kumar
S/o Sh.Jitender Kumar
Name and address of accused : 1.Shivam
S/o Sh.Ashok
R/o RZ-33, Gali No.7,
Raghu Nagar, Delhi.
2.Sonu
S/o Sh.Raju
R/o RZ-39, Gali No.7,
Raghu Nagar, Delhi.
3.Sailesh
S/o Sh.Rajesh
R/o House No.99, Gali
No.1, Nathu Complex,
Dabri Village, New Delhi.
4.Shivam
S/o Sh.Ishwar Charan
State Vs. Shivam & Ors.
FIR No.218/2017
Page No.1/12
R/o Gali No.1, Deewali
Chowk, Dabri Village,
Delhi.
Offence complained of : U/s 392/411/34 IPC
Plea of the accused : Pleaded not guilty
Final order : Acquittal
Date on which judgment reserved : 19.04.2024
Date of judgment : 03.05.2024
JUDGMENT
1. The accused persons have been charge-sheeted for committing offence punishable under Section 392/411/34, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").
2. It is a case of prosecution that on 02.06.2017, at about 2:10 am near Kali Mata road, Pankha road, Janakpuri, Delhi, accused Shivam S/o Ishawar Charan, Sonu, Shailesh and Shivam S/o Kishore in furtherance of their common intention had robbed mobile phone Micromax and purse from complainant Ravi Kumar and thereby committed offence punishable U/s 392/34 IPC. It is further being stated that at the same time, date and place, accused Sonu was found in possession of stolen mobile phone of complainant Ravi Kumar, which he had dishonestly received or retained knowing or having reason to believe to be stolen property and thereby accused Sonu was charged for offence punishable U/s 411 IPC. It has further being stated that State Vs. Shivam & Ors.
FIR No.218/2017 Page No.2/12at the same time, date and place, accused Shivam S/o Ashok was found in possession of a purse of complainant Ravi Kumar, which he had dishonestly received or retained knowing or having reason to believe to be stolen property and thereby accused Shivam S/o Ashok was charged for offence punishable under Section 411 IPC.
3. Prosecution examined Ravi Kumar as PW1. He deposed that he is a rikshaw puller and the incident took place on 02.06.2017 at about 2:00 am when he was going to his house in his battery rikshaw. That when he reached under the flyover of Pankha road, 4 boys came near him and had beaten him. All the accused persons were present in the court and were correctly identified by him. That they had robbed the complainant of his money and mobile phone and by committing the said offence they had also damaged the battery rikshaw of the complainant. Meanwhile, a PCR came at the spot and complainant narrated the incident to the police official.
4. It is further being stated that on the next day, the complainant reached at the PS and he saw that accused persons were already apprehended by the police. That they had robbed about 300-400 rupees from the complainant and statement of complainant which is Ex. PW1/A was recorded by the IO. The witness stated that he had signed on seizure memo of his purse and mobile phone which is Ex. PW1/B and Ex. PW1/C. That he had also signed arrest memo of all accused persons Ex. PW1/D State Vs. Shivam & Ors.
FIR No.218/2017 Page No.3/12to Ex. PW1/G and had also signed on the personal search memo of all accused persons Ex. PW1/H to PW1/K. MHCM brought the case property in unsealed condition and same was correctly identified by the witness.
5. Prosecution examined ASI Subhash Singh as PW2. He deposed that on 02.06.2017, he was on ERV duty as Incharge of vehicle along with driver ASI Baljeet. That during their patrolling duty, they reached at Pankha Road, Kali Mata Road, where they found complainant crying and complainang about the robbery of his mobile phone. That he had pointed that 4 boys committed robbery of his purse and mobile phone and thereafter, the complainant ran in the same direction to apprehend and accused persons. The witness had apprehended 4 boys, whose names revealed as Shivam S/o Ishawar Charan, Sonu, Shailesh and Shivam S/o Kishore. All the accused persons were present in the court and correctly identified by the witness. The mobile phone was recovered from accused Sonu and purse was recovered from accused Shivam S/o Kishore. Thereafter, the witness had informed PS Janakpuri, on which, SI Laxman along with HC Devender reached at the spot. The witness had handed over the apprehended accused persons and case property to SI Laxman, who seized the phone and purse of the complainant vide seizure memo Ex. PW1/B and Ex. PW1/C. Statement of complainant was recorded and IO had prepared rukka. After registration of the case, the site plan was prepared by the IO vide Ex. PW2/A. IO had arrested all the accused persons and conducted their State Vs. Shivam & Ors.
FIR No.218/2017 Page No.4/12personal search bearing signatures of the witness. All the accused persons were taken to the hospital for their medical examination and the case property was deposited in Malkhana.
MHCM produced unsealed plastic bag and one grey color micromax phone one brown color purse having photographs, 3 hundred currency notes, some visiting cards, one metro card, ICICI bank debit card, one Axix bank Visa Credit card. The case property was correctly identified by the witness.
6. During his cross examination by Ld. Defense counsel, the witness stated that the spot is a busy place, however, the incident took place at 2:00 am and no public persons were available at that time. He denied the suggestion that no accused person were apprehended in his presence. That the distance between the place of incident and place of occurance was about 500 meters and the witness had chased the accused persons in their vehicle. That at the time of apprehension, the complainant was not sitting in their vehicle and he came shortly after the time when the witness had blocked the way of the accused person.
7. Prosecution examined ASI Surender Singh as PW3. He stated that on 02.06.2017, he was posted at PS Janakpuri as duty officer with duty hours from 12:00 midnight to 8:00 am. On that day at about 2:30 am, he received telephonic information from ASI Subhash regarding apprehension of four persons, who had robbed one Ravi at kali Mata Mandir, Pankha Road. He reported DD No. 7A in roznamacha register dated 02.06.2017 and handed State Vs. Shivam & Ors.
FIR No.218/2017 Page No.5/12over the report of DD No. 7A to SI Laxman along with HC Devender for taking necessary action. He also brought roznamacha register of DD No. 7A which is Ex. PW3/A. Thereafter, on the same day at about 5:15 am, he received rukka from HC Devender send by SI Laxman. On the basis of rukka, he registered FIR No. 218/17. Today, he has brought FIR register of the said FIR. Copy of the FIR is Ex. PW3/B. He handed over the copy of FIR and original rukka to HC Devender to give the same to SI Laxman. He also made endorsement on the rukka Ex. PW3/C. He also issued certificate U/s 65 of IEA regarding feeding the information of the FIR into computer through CIFA. Certificate is Ex. PW3/D. The witness was cross examined by Ld. Defence counsel.
8. The prosecution examined HC Devender Kumar as PW4. That on 02.06.2017, upon receiving information vide DD No.7A, he alongwith SI Laxman reached at Kali Mata Mandir, Pankha road where ASI Subhash alongwith complainant Ravi met them. That the accused persons were produced to him. Accused persons were correctly identified by the witness. IO had prepared site plan at the spot. IO had recorded statement of complainant and prepared rukka. The witness went to PS and got the FIR registered.
Witness was cross examined by ld.Counsel for accused persons, wherein he stated that the spot was a busy road and passersby were also there. That IO had asked public persons to State Vs. Shivam & Ors.
FIR No.218/2017 Page No.6/12join the investigation but they left the spot without disclosing their names and addresses.
9. The prosecution examined IO/SI Laxman as PW5. He deposed that on intervening night of 1st and 2nd June, 2017, he was on emergency duty and at about 2:30 am, he received information vide DD No. 7A from DO regarding apprehension of accused persons and case property. IO along with HC Devender reached at the spot and met ASI Subhash. ASI Subhash handed over custody of accused persons to the witness. ASI Subhash had also handed over case property i.e. micromax mobile phone and one purse containing Rs.300/-. IO recorded statement of the complainant Ex.PW1/A at the spot and prepared rukka Ex.PW5/A over the same. The rukka was handed over to HC Devender for registration of FIR and after registration of the case, IO prepared site plan Ex.PW2/A at instance of the complainant. He seized case property vide memo already Ex.PW1/B and Ex.PW1/C. IO arrested accused persons vide arrest memo Ex.PW1/D to Ex.PW1/G respectively, all bearing his signatures at point C. He recorded disclosure statement of accused persons vide memo Ex.PW2/B to Ex.PW2/E respectively, all bearing signatures of the witness at point B. All the accused persons were medically examined at DDU Hospital.
The accused persons were present in the court and they were correctly identified by the witness. MHC(M) produced case property in a polythene bag and micromax mobile phone State Vs. Shivam & Ors.
FIR No.218/2017 Page No.7/12alongwith one brown coloured purse having photographs, currency notes of Rs.300/- of denomination of Rs.100/-, visiting cards, metro card, ICICI Bank debit card and one Axis Bank Visa Debit card. The witness correctly identified the case property.
10. During his cross examination by ld. Defence Counsel, he stated that he reached at the spot at about 3 AM, where he met ASI Subhash only. None of the accused persons were having mobile with them other than the case property. He denied the suggestion that accused persons were not arrested from the spot and case property was falsely planted upon them.
11. It is pertinent to note that vide order dt.23.05.2022, ld. Predecessor of the Court had allowed application under Section 311 CrPC filed by accused persons to recall complainant PW1/Ravi Kumar for his cross examination. This Court had issued summons as well as bailable warrants against complainant Ravi. A detailed report under the signatures of SHO PS Janakpuri was filed, wherein it was stated that despite best efforts, they could not trace the whereabouts of the complainant. Vide order dt.21.03.2024, complainant Ravi was dropped from the list of witnesses.
12. No other witness was examined by the prosecution and hence, PE was closed.
13. Thereafter, separate statement u/s 313 Cr.P.C. of the accused persons were recorded, wherein all the incriminating State Vs. Shivam & Ors.
FIR No.218/2017 Page No.8/12material that appeared in evidence against them, was put to them to which they stated that they are innocent and have been falsely implicated in this case. Accused persons opted not to lead defence evidence.
14. Final arguments advanced by Ld. APP for State and ld. counsel for accused heard. Case file perused carefully.
15. In a criminal case, the burden is on the prosecution to prove its case beyond reasonable doubts before accused is asked to put his defence. It is for the prosecution to travel the entire distance from may have to must have. If the story of the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
16. First and foremost, for any prosecution case to stand on its own legs, it must pass through stringent test of compelling cogency, plausibility and lucidity. The cardinal principle of imputing guilt on the accused is that the said guilt must be proved beyond reasonable doubt. However, in the present case, the case of the prosecution is feeble and brims with murkiness. Let us examine the potentiality of the story so putforth.
17. In the present case, complainant PW1/Ravi Kumar was examined in chief on 26.10.2018 and this Court while allowing application under Section 311 CrPC for recalling PW1/complainant, had summoned the witness. A detailed report under the signatures of SHO PS Janakpuri was filed, wherein it State Vs. Shivam & Ors.
FIR No.218/2017 Page No.9/12was stated that despite best efforts, they could not trace the whereabouts of the complainant. Vide order dt.21.03.2024, complainant Ravi was dropped from the list of witnesses.
18. In the case of Ripen Kumar Vs. Department of Customs, 2001 CrLJ.1288, it was held by Hon'ble High Court of Delhi that if no full cross examination of witness has taken place, such deposition cannot be relied in terms of Section 3 of the Indian Evidence Act.
19. In view of the observations laid down by Hon'ble High Court of Delhi, it is clear that the complainant was not fully cross examined by ld. Defence Counsel and thus, reliance on his testimony cannot be placed. Furthemore, it has already stated by PW5/IO SI Laxman that the case property was released by him. However, the case property was produced before the Court, for the first time on 26.10.2018 and the same was produced in unsealed condition. It is apparent from the record that the case property was never seized by the investigating officer. Hence, the possibility of case property be tampered/manipulated at a later stage cannot be ruled out.
20. It has already come on record that PW2 ASI Subhash had apprehended the accused persons. It was only complainant Ravi who had seen the accused persons committing the alleged offence. Other than the complainant, there is no other witness who could have deposed about the incident in question. Even it is State Vs. Shivam & Ors.
FIR No.218/2017 Page No.10/12established that the complainant had caught hold of the accused at the spot, that would not make out the offence of theft in the absence of evidence of the complainant. The statement of PW2 ASI Subhash is only hearsay in nature as he himself never saw the accused persons committing any act which could be called as robbery. Upon non-examination of the complainant and the only eye witness, there is no other witness who might have noticed the accused persons present at the spot or the accused persons making any overt act which could be called as an act of theft amounting to robbery. Thus, in the absence of complainant/victim, no offence under Section 392/34 IPC would be made out.
21. Even for Section 411 IPC to apply, the prosecution has to establish that the recovered property is a stolen property. No invoice of the stolen mobile phone was ever produced by complainant or prosecution to show that the mobile phone belonged to complainant Ravi Kumar. The case property which was produced in the court was in unsealed condition and the property is of such nature, which is readily available in the market. But in the absence of said Ravi Kumar, there is no witness who could depose about recovery of purse from the accused persons and to identify the property to be belonging to him so as to call it a stolen property. The benefit on this count has to also go to the accused persons.
FIR No.218/2017 Page No.11/1222. It has to be understood that the burden is always on the prosecution to prove the guilt of the accused beyond the shadow of reasonable doubt, by leading positive evidence. This burden never shifts upon the accused to establish his innocence. On account the untraceability of eye witness of the incident, the prosecution case has suffered a fatal blow which goes to the root of the matter. Mere suspicion, howsoever strong it might be, cannot replace the standard of proof required to establish the guilt of an accused in a trial for commission of a criminal offence.
23. Thus, in view of the foregoing analysis, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused, who is entitled to be exonerated of the charges against him in the present case. Accused Shivam S/o Sh.Ashok, Sonu S/o Sh.Raju, Shailesh S/o Sh.Rajesh and Shivam S/o Sh.Ishwar Chand are hereby acquitted of the offences punishable under Section 392/411/34 IPC. Accused persons be set at liberty.
Pronounced in the open court.
This judgment consists of 12 pages and each page has been signed by the undersigned.
(BHARTI BENIWAL) Metropolitan Magistrate-11 South West District, Dwarka Courts, New Delhi State Vs. Shivam & Ors.
FIR No.218/2017 Page No.12/12