Delhi District Court
State vs . : Rahul @ Golu on 18 August, 2023
IN THE COURT OF SH. ABHINAV AHLAWAT,
METROPOLITAN MAGISTRATE-09 SOUTH-WEST
DISTRICT, DWARKA COURTS, NEW DELHI
State Vs. : Rahul @ Golu
FIR No. : 224/2020
U/s : 392/411 IPC
Police Station : Jafarpur Kalan
1. CNR No. of the Case : DLSW020046172021
2 Date of commission of
: 20.11.2020
. offence
Date of institution of the
3. : 16.01.2021
case
4. Name of the complainant : Bipin Kumar Gupta
5. Name of accused, : Rahul @ Golu
parentage & address S/o Ved Prakash
R/o Village
Mundhela, Jafarpur
Kalan, Dwarka, Delhi.
6. Offence complained of : 392/411 of IPC
7. Plea of the accused : Pleaded not guilty
Convicted u/s 392
8. Final order : IPC &
acquitted u/s 411 IPC.
9. Date of final order : 18.08.2023
Argued by:- Mr. Pankaj Gulia, Ld. APP for the State.
Mr. Parveen Goyal, Ld. Counsel for accused.
FIR No. 224/2020, PS Jafarpur Kalan State v. Rahul @ Golu Page 1 of 14
Digitally signed
Abhinav by Abhinav
Ahlawat
Ahlawat Date: 2023.08.18
16:16:39 +0530
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX-
1. Briefly stated, the case of the prosecution is that on 20.11.2020 at 11:30 am at Mundhela Kalan Village, near Shop of Dharampal, Phirni Road, Delhi, accused committed robbery of one brown purse belonging to complainant Bipin Kumar Gupta and accused was found in possession of abovesaid brown purse which he retained knowing or having reasons to believe the same to be stolen property. As such, it is alleged that the accused has committed the offence punishable under Sections 392/411 of the Indian Penal Code, 1860 (hereinafter, "IPC"), for which FIR no.224/2020 was registered at the police station Jafarpur Kalan, Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the chargesheet against the accused was filed. The Ld. Predecessor of this Court took the cognizance against the accused and summons were issued to the accused. On his appearance, copy of the chargesheet was supplied to him in terms of section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused, charge under Section 392/411 of IPC was framed against the accused on 28.10.2021. The accused pleaded not guilty and claimed trial.
FIR No. 224/2020, PS Jafarpur Kalan State v. Rahul @ Golu Page 2 of 14 Digitally signed by Abhinav Abhinav Ahlawat Ahlawat Date:
2023.08.18 16:16:56 +0530 PROSECUTION EVIDENCE
3. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt: -
ORAL EVIDENCE PW-1 Mr. Bipin Kumar Gupta PW-2 HC Shripal PW-3 SI Johny Kumar DOCUMENTARY EVIDENCE Ex.PW1/A Complaint Ex.PW1/B Site plan Ex.PW1/C Arrest memo Ex.PW1/D Personal search memo Ex.PW1/E Seizure memo Ex.PW1/P1 Case property i.e. purse Ex.PW3/A Tehrir ADMITTED DOCUMENTS Ex.A1 Endorsement on rukka Ex.A2 FIR Ex.A3 Certificate u/S 65B of Indian Evidence Act Ex.A4 GD no.33A Ex.A5 MLC
4. Prior to delving into the merits of the contentions advanced on behalf of parties, let us briefly discuss the testimonies of the material prosecution witnesses.
5. PW1 Sh. Bipin Kumar Gupta has deposed that on 20.11.2020, at about 11:30 am, he had gone to sell plastic chair and when he reached Mundhela Kalan, Firni Road, one man came to him and asked about the price of the chair. Suddenly, that person started hitting him with kicks and punches and snatched his purse.
Public persons stopped and apprehended that person. He called FIR No. 224/2020, PS Jafarpur Kalan State v. Rahul @ Golu Page 3 of 14 Digitally signed by Abhinav Abhinav Ahlawat Ahlawat Date:
2023.08.18 16:17:06 +0530 on 100 number and police came to the spot. Accused was handed over to the police. His purse was recovered from the accused. His purse was brown in colour which had Rs.300/- and his adhar card amongst other items. He gave his complaint Ex.PW1/A and thereafter IO prepared the site plan Ex.PW1/B, arrested and personally searched the accused vide memos Ex.PW1/C and Ex.PW1/D respectively and seized the purse vide seizure memo Ex.PW1/E. He was taken to RTRM hospital for medical examination. The witness correctly identified the accused present in the Court and the case property as Ex.PW1/P1 (colly).
In his cross-examination, PW1 stated that at the time of offence, he was alone. There was no public gathering at the place of occurrence. He did not know how many persons were present at the place of occurrence and at police station. He did not remember where the site plan was prepared. Witness further stated that in his presence police had not asked public persons to join the investigation. At the time of recovery of purse, he could not notice whether the accused himself produced the recovered purse.
6. PW2 HC Shri Pal deposed that on 20.11.2020, after receiving the DD no.33A, he along with SI Johny Kumar went to Phirni Road, Village Mundhela Kalan where he met the complainant, Bipin. Public persons had caught hold the person who had committed the offence. The medical examination of the complainant was got conducted in the RTRM hospital and he brought the complainant to RTRM hospital and after getting treatment, he came back at the said place. That IO recorded statement of complainant and on the basis of statement of the FIR No. 224/2020, PS Jafarpur Kalan State v. Rahul @ Golu Page 4 of 14 Digitally signed by Abhinav Abhinav Ahlawat Ahlawat Date:
2023.08.18 16:17:14 +0530 complainant, IO prepared rukka and got the FIR registered through him. Thereafter, accused was arrested, his personal search was conducted. A brown purse was recovered from the possession of the accused after cursory search as per the statement of the complainant as complainant had informed to IO. The recovered purse was seized. The witness correctly identified the same. In his cross-examination, he stated that there were several persons but he had not counted them. PW2 also stated that IO did not record the statement of any person as they were not willing to give their statement. He took the complainant at about 01:00pm to the hospital and came back to said place at about 01:30pm. PW2 stated that the purse was recovered from the right pocket of the accused.
7. PW3 SI Johny has deposed that on 20.11.2020, upon receiving, DD no.33A regarding a PCR call, he along with HC Shri Pal went to the spot of incident i.e. Dharampal Ki Dukan, Phirni Road, Village Mundhela Kalan where they met the complainant Bipin Kumar Gupta and the public persons present at the spot produced the accused before him whose name was disclosed to him as Rahul @ Golu who was identified by the complainant at the spot and disclosed that he was the same person, who had snatched the purse of complainant. Upon the cursory search of accused, one brown colour purse was recovered which was identified by the complainant as his own. He recorded the statement of complainant. Thereafter, the complainant was sent to the hospital with HC Shripal for his medical examination which was done vide MLC no.4528/20. He prepared a tehrir upon the statement of complainant Ex.PW3/A and got the FIR registered through HC Shripal. He prepared the site plan at the instance of FIR No. 224/2020, PS Jafarpur Kalan State v. Rahul @ Golu Page 5 of 14 Digitally signed Abhinav by Abhinav Ahlawat Ahlawat 16:17:24 Date: 2023.08.18 +0530 complainant and requested the public persons to join the investigation but none of them agreed and left the spot without disclosing their names and addresses. He arrested the accused, personally searched him and thereafter the accused was brought to the PS and put into lockup. During investigation, the case property was seized vide seizure memo and he recorded the statements of witnesses. After concluding the investigation, he prepared the charge-sheet and filed the same before the Court.
The witness correctly identified the accused and the case property as Ex.PW1/P1. In his cross-examination, he stated that he reached at the spot at about 12:00 noon, where he met complainant and accused. Some public persons were also there. No public person joined the investigation. No notice was given to them for refusing to join the investigation. He recorded the statement of complainant at the spot.
STATEMENT OF THE ACCUSED AND DEFENCE
EVIDENCE
8. Thereafter, before the start of defence evidence in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused was recorded without oath under section 281 r/w 313 Cr.PC., wherein he stated that he was innocent and had been falsely implicated in the present case. He further stated that he did not want to lead defence evidence.
ARGUMENTS FIR No. 224/2020, PS Jafarpur Kalan State v. Rahul @ Golu Page 6 of 14 Digitally signed by Abhinav Abhinav Ahlawat Ahlawat Date:
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9. I have heard the Ld. APP for the State and Ld. Counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
10. It is argued by the Ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that prosecution witnesses have categorically deposed about the commission of offence and there is no ground to disbelieve their testimony. He further contends that the documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that the accused be punished for the said offences.
11. Per contra, the Ld. Counsel for accused has argued that the State has failed to establish its case beyond reasonable doubt. Ld. counsel further argued that the entire case of the prosecution is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the material on record. It is argued that the prosecution has failed to discharge the burden cast upon it. As such, it is prayed that the accused be acquitted for the said offence.
APPRECIATION OF EVIDENCE
12. The allegations levelled against accused are segregated into two parts:- first that accused committed offence punishable under section 392 IPC and second that accused retained knowing or having reasons to believe that the snatched purse was a stolen property under section 411 IPC.
The first offence levelled against the accused person is under section 392 IPC and the term robbery is defined as follows: -
FIR No. 224/2020, PS Jafarpur Kalan State v. Rahul @ Golu Page 7 of 14 Digitally signed by Abhinav Abhinav Ahlawat Ahlawat Date:
2023.08.18 16:17:58 +0530 Section 390 of the Indian Penal Code defines robbery as: -
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
13. Robbery is a special and aggravated form of either theft or extortion. The chief distinguishing element in robbery is the presence of imminent fear or violence. The second para distinguishes robbery from theft, the third distinguishes it from extortion. When robbery is sought to be established through theft, then before one may be convicted of robbery, theft by him must be proved and established. Where theft is not established, the accused is entitled to an acquittal of the offence of robbery.
Theft Snowballs to robbery when in the committing of theft or in order to the committing of theft or in carrying away or in attempting to carry away the booty, force is used. Thus, violence may be caused either before, or during or after committing the theft but it must be caused for any of the ends stated above.
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14. In the present case, it is the version of the complainant that accused suddenly started hitting him with kicks and punches and then snatched his purse. Complainant/PW1 Bipin Kumar Gupta has further identified accused as the one who had taken his purse. Nothing contradictory has appeared in his testimony so as to disbelieve the same. Further, nothing suspicious has appeared in the testimony of the complainant to show that complainant had any motive to falsely implicate the accused. Further, from the testimony of the complainant, it is clear that accused first started beating the complainant and then snatched the purse from his possession. Further, nothing contradictory has appeared in complainant's testimony to show that accused was not the offender.
15. Further, the FIR Ex. A2 is of the date of occurrence itself i.e. of 20.11.2020. As such there is no delay in the registration of the FIR and neither is there any contradiction in FIR version and in complainant's testimony before the Court as PW1. As per the prosecution version, the complainant had apprehended the accused at the spot itself with the help of other public sometime after the occurrence itself which is corroborated by the arrest memo Ex.PW1/C which is dated 20.11.2020 and has been duly proved by the IO PW3 SI Jony Kumar, PW1 complainant Bipin Kumar Gupta and PW2 HC Shri Pal.
The case property i.e., the purse of the complainant has also been produced before the Court and its seizure memo Ex.PW1/E which is of the date of occurrence itself has been duly proved by the IO PW3, PW2 complainant and PW2 as attesting witness.
FIR No. 224/2020, PS Jafarpur Kalan State v. Rahul @ Golu Page 9 of 14 Digitally signed by Abhinav Abhinav Ahlawat Ahlawat Date:
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16. At this stage it would be, pertinent to note that argument of the learned counsel for accused person relating to non-joining of public witnesses. It is argued by learned counsel for accused persons that in the case of Anoop Joshi Vs. State, 1992(2) C.C. Cases 314(HC), Hon'ble 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 rigors 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."
17. It is further argued by learned Counsel for accused person that present case is planted upon the accused person, as no public witness was involved at the time of alleged seizure proceedings.
In the present case, it is not in dispute that there is no independent witness to the recovery of case property / purse and apart from the testimony of complainant / PW1 no other witness except the police officials have witnessed the said recovery from the accused person. On the basis of this, in the light of such case law, it is claimed by the learned counsel for accused that the testimony of all police witnesses as well as that of PW1 be rejected.
On the other hand, Learned APP for state argued to the contrary on this aspect and referred to certain case law including FIR No. 224/2020, PS Jafarpur Kalan State v. Rahul @ Golu Page 10 of 14 Digitally signed by Abhinav Abhinav Ahlawat Ahlawat Date:
2023.08.18 16:18:22 +0530 the case of "Appabhai Vs. State of Gujrat" (AIR 1988 SC
696), where it has been held as under:
"..........it is no doubt true that the prosecution has not been able to produce any independent witness to the murder that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the spectrum or the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused."
18. Thus, it is argued by Learned APP that adverse inference cannot always be drawn on account of failure of the prosecution to join independent witnesses, despite presence and availability of public witness.
19. This Court has considered the arguments and case law relied by both sides. This Court is mindful of the fact that there is no presumption that the police officers are unreliable witnesses and, therefore, their evidence cannot be accepted. Further as far as search of case property is concerned, it is also laid down by the Hon'ble Supreme Court time and again that the evidence of the investigating officer conducting a search can be relied upon without corroboration, but is equally settled law at the same time that the question of corroboration depends upon the facts in each case.
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20. Thus, it is held by the Court that whether non-joining of independent persons /witnesses would, at the time of arrest, or recovery of case property/weapon of offence etc. on the spot, (and for that matter recovery of case property in situation covered u/s27 of Evidence Act), be fatal to the prosecution case or not, would depend on the facts and circumstance of each case, in view of appreciation of evidence on record. There cannot be a universal rule for the same.
21. In the present case, the purse which was snatched / robbed from the possession of the complainant was after accused started hitting complainant with fists and blows. Thereby the hurt caused by the accused was voluntary and the snatched purse was recovered from the possession of the accused as he was apprehended from the spot with the help of public person.
It is settled law that the testimony of victim is accorded a special status in law as the victim would not want to let his/ her actual assailant go unpunished merely to falsely implicate the third party for the commission of the offence. Therefore, there is no reason to believe that the accused was falsely implicated in the present case or that only due to non-joining of public person the recover or seizure proceeding is tainted. Thereby, the offence under section 392 IPC is made out against the accused person.
22. The Second set of allegations levelled against the accused person relates to offences u/s 411 IPC and the same is defined as:-
Dishonestly receiving stolen property. --Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with FIR No. 224/2020, PS Jafarpur Kalan State v. Rahul @ Golu Page 12 of 14 Digitally signed by Abhinav Abhinav Ahlawat Ahlawat Date:
2023.08.18 16:18:38 +0530 imprisonment of either description for a term which may extend to three years, or with fine, or with both.
23. The allegation against the accused person is that on the said date, he robbed purse of the complainant and the same was recovered from his possession which the accused person dishonestly retained or received knowing and having reasons to believe the same to be the stolen property.
24. The basic ingredient that, accused must receive or retain the stolen property and secondly, he must have the knowledge or the reasons to believe that property is stolen property, within the meaning of section 410 IPC is not made out as neither the accused received the stolen property from anyone nor he retained it believing the same to be stolen property as accused was immediately apprehended with the help of public persons from the spot after committing the offence of robbery. As the offence under section 392 IPC stands proved against the accused for the reasons mentioned hereinabove, section 411 IPC cannot be stated to have been committed by him. It is so because he cannot be said to be the robber and receiver of stolen property at the same time. Reliance can placed be placed upon Sunil Mashi @ Silly vs State of NCT of Delhi, (2014) pronounced by Hon'ble HC of Delhi and Gopi Jaiswal vs State of U.P pronounced by Hon'ble Allahabad High Court (2011)] In light of the same, accused Rahul is acquitted for offence under Section 411 IPC.
CONCLUSION
25. The upshot of the foregoing discussion is that the prosecution evidence, both oral and documentary, including the surrounding FIR No. 224/2020, PS Jafarpur Kalan State v. Rahul @ Golu Page 13 of 14 Digitally signed by Abhinav Abhinav Ahlawat Ahlawat Date:
2023.08.18 16:18:46 +0530 circumstances leads to the only conclusion that accused person gave beatings to the complainant and thereby robbed complainant of his purse. The prosecution has been able to establish beyond reasonable doubts all the ingredients of section 392 IPC.
26. In the light of above discussions, the Court is of the view that prosecution has been successful in establishing the guilt of the accused person and accordingly accused Rahul@ Golu is hereby convicted for offence punishable u/s 392 IPC.
27. Let the convict be heard separately on the quantum of sentence.
Announced in the open Court on 18.08.2023 in the presence of the accused. Abhinav by Digitally signed Abhinav Ahlawat Ahlawat Date: 2023.08.18 16:18:54 +0530 (Abhinav Ahlawat) Metropolitan Magistrate-09, Dwarka, Delhi/18.08.2023 Note:- This judgment contains 14 pages and each page has been signed by me.
Abhinav Digitally signed by Abhinav Ahlawat Ahlawat 16:19:01 +0530 Date: 2023.08.18 (Abhinav Ahlawat) Metropolitan Magistrate-09, Dwarka, Delhi/18.08.2023 FIR No. 224/2020, PS Jafarpur Kalan State v. Rahul @ Golu Page 14 of 14