Delhi District Court
Haryana In Balraj Singh vs . The State Of Punjab, 1976 Cr.L.J. 1471 ... on 6 July, 2012
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IN THE COURT OF SH. RAMESH KUMAR : SPECIAL JUDGE : NDPS
ADDL. SESSIONS JUDGE : ROHINI COURTS : DELHI
S.C. No.14/12
FIR No. 405/11
P.S. Shalimar Bagh
U/s. 392/397/411/34 IPC
State
Versus
Anil @ Sonu Phoda
s/o. Ram Gopal,
r/o. Village Oghav,
District Aligarh,
U.P.
Date of Institution: 05.03.2012
Date of Decision : 06.07.2012
JUDGMENT : In the present case, the FIR was registered for the offences punishable U/s.392/394/397/411/34 IPC against the accused Anil @ Sonu Phoda, Zakir and Umesh Ganja. It is the case of prosecution that on 12.11.2011, at about 12.30 PM, in front of Choupal Wali Gali, by the side of Park Railway Line, Shalimar Village, Delhi, accused Anil @ Sonu Phoda alongwith his coaccused, namely, Zakir Ahmed and Umesh (not arrested) robbed Vicky, complainant of his mobile phone make Sony FIR NO.405/11 Page 1 of 8 2 Erricson and Rs.1,100/ and while robbing the complainant, accused used a blade, a deadly weapon and accused caused grievous hurt on the person of complainant. On the same day, Rs.1,100/ were recovered from the possession of accused Anil @ Sonu Phoda. Thereafter, accused Anil @ Sonu Phoda was arrested. Other accused persons, namely, Umesh Ganja and Zakir could not be arrested. FIR was registered. After completion of investigation, chargesheet was filed against accused Anil @ Sonu Phoda.
2. Charge for the offences punishable U/s.392/394/397/411/34 IPC was framed against the accused Anil @ Sonu Phoda, to which he pleaded not guilty and claimed trial.
3. Prosecution examined three witnesses in support of its case. They are PW1 HC Pawan Kumar, Duty Officer, who got recorded the FIR on the rukka and proved copy of the same in the Court as Ex. PW1/A and also proved his endorsement on the rukka as Ex. PW1/B. PW2 HC Dalbir is the witness of recovery and arrest of the present accused namely Anil @ Sonu Phoda. He deposed as per his statement recorded by the IO and supported the version of prosecution. He reached the spot after the incident and alleged to be remained in the investigation till the arrest of accused Anil @ Sonu Phoda at the instance of one Ct. Anil and recovery. He identified the blade, alleged to be used in the present case, and proved the same as Ex. P1. During cross examination by Ld. Amicus for the accused, he deposed that he did not record the statement of the person, who told that accused Anil @ Sonu Phoda and his associates had committed the robbery.
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4. PW3 Vicky is the sole eye witness and complainant in this case. He did not support the case of prosecution in any manner and deposed that on 12.11.2011, at about 12.15 PM, he was going to purchase the clothes and was passing through the railway line, in between the park. When he reached in front of Chaupal Wali Gali, three boys were sitting in the park near railway line, namely, Umesh Ganja and Zakir and third person, whose name he did not know, and they asked him to stop, but he neglected them because he knew that they are the bad elements of the area and are involved in criminal case and have been recently released from the jail. Suddenly, one of the boy came from his back side and caught hold of his neck and pressed the same, whereas the other boy, whose name he did not know, gave a fist blow on his face. One of them, namely, Umesh Ganja, who was not arrested in this case, threatened PW3 and asked him to give his money to him and then he took out Rs.1,100/ from the right side pocket of the pants of complainant. Another boy, namely, Zakir, who was also not arrested in this case, removed the mobile make Sony Erricson of black and white colour of complainant, having number 8527471804, from the pocket of his wearing shirt. Thereafter, they started running. PW3 raised alarm, "Pakdo Pakdo". Thereafter, Zakir took out a blade from his mouth and inflicted injury on the person of complainant. Thereafter, they fled away from the spot. PW3 reached at PCO and made call to the PCR. PCR took him to the BJRM FIR NO.405/11 Page 3 of 8 4 Hospital and he was given treatment there. Police recorded the statement of complainant, which is proved on record as Ex. PW3/A. The witness voluntarily stated that his statement was not read over or explained to him. He further deposed that police also obtained his signatures on some other documents. He also deposed that nobody was arrested in his presence. He further deposed that none of the assailant, namely, Zakir, Umesh Ganja and their third associate is present in the Court today. However, he identified his signatures on Exs. PW3/B, PW3/C & PW3/D. He further deposed that his money was never recovered in his presence by the police. Thereafter, this witness was allowed to be cross examined by the Ld. Addl. PP. But nothing incriminating could be brought out in the cross examination by Ld. Addl. PP. He denied the entire evidence and also not identified the accused Anil @ Sonu Phoda, even after specifically pointed out by Ld. Addl. PP. However, in the cross examination by Ld. Addl. PP, PW3 deposed that his blood stained shirt of cream colour and yellow coloured vests (baniyan) were taken into possession vide memo Ex. PW3/E. He further deposed that police prepared site plan of the spot at his instance, which is Ex. PW3/G. He identified the blood stained shirt of black and green colour and one yellow coloured vests (baniyan) as collectively Ex. P1. He further identified Rs.1,100/ in the Court, which were in the denomination of two currency notes of rupees 500 and one currency note of rupees 100, but FIR NO.405/11 Page 4 of 8 5 stated that he was unable to identify the currency, as no specification mark of identification was noticed by him on the currency notes at the time of incident. He further stated that it was not recovered in his presence, but the denomination of his robbed amount was same. He identified the currency notes as collectively Ex. P2.
5. In view of the evidence of complainant on record, the statement of the accused under section 313 Cr.P.C. was dispensed with, as there is no other public witness, remaining in this case, to be examined by the prosecution and all the remaining witnesses are formal in nature. However, Ld. Addl. PP had requested to examine the remaining witnesses, but as no useful purpose was going to be served by keeping the case pending, the PE was closed.
6. It has been contended by the Ld. Amicus for the accused that the accused has been falsely implicated in the present case and there is not sufficient evidence on record which could bring home the alleged guilt of the accused. It has further been argued that material witness has not deposed anything against the accused and stated nothing about the identity of accused Anil @ Sonu Phoda . It has been prayed that since, prosecution has failed to prove its case against the accused, he be acquitted.
7. On the other hand, it has been contended by Ld. Addl. PP for the State that there is sufficient material on record against the accused to convict him for the offences alleged against him. Ld. Addl. PP for the State has argued that accused be punished for the offences committed by him.
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8. I have heard arguments on behalf of Ld. Add. PP for the State and Ld. Amicus for the accused and have gone through the record file carefully.
9. It is well settled preposition of criminal law that prosecution has to establish its case against the accused beyond reasonable doubt. Reference in this connection can be made to the decision of Hon'ble High Court of Punjab and Haryana in Balraj Singh Vs. The State of Punjab, 1976 Cr.L.J. 1471 (DB) (Punjab) in which it was observed as follows: "The guilt of accused is to be established by the prosecution beyond the possibility of any reasonable doubt on the basis of legal evidence and material on record. Even if, there may be an element of truth in the prosecution story against the accused and considered as a whole, the prosecution may be true, but between 'may be true' and 'must be true', there is invariably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted".
10. Reference in this connection can also be made to the decision of Supreme Court in, Tika Vs. State of UP, AIR 1974 SC 155, wherein it has been held that "One of the cardinal principles which has always to be kept in view, in our system of administration of justice for criminal cases, is that an accused is presumed to be innocent, unless, that presumption is rebutted by the prosecution by FIR NO.405/11 Page 6 of 8 7 production of evidence which may show him to be guilty of the offence with which he is charged".
11. In Bhikari Vs. State of U.P., AIR 1966 SC 1, the Supreme Court has held that "Undoubtedly, it is for the prosecution to prove beyond reasonable doubt that the accused has committed offence with the requisite mens rea.
Once it is done, the accused can rebut this presumption either by leading evidence or by relying on the prosecution evidence itself. If upon evidence adduced in the case, either by prosecution or by defence, a reasonable doubt is created in the mind of the court, regarding one or more ingredients of the offence including mens rea, then he would be entitled to be acquitted".
12. In the present case, prosecution examined PW3 Vicky, as the sole material witness, but he had not deposed anything against the accused, which could connect him in the present case. There is no incriminating evidence against the accused, Anil @ Sonu Phoda, in the present case. However, the witness named the other two accused, namely, Zakir and Umesh Ganja, but they are not arrested in this case. He specifically deposed that accused was not amongst the three persons, who committed robbery with him and it was someone else, apart of accused Zakir and Umesh Ganja, who was present with them and committed the offence. He even stated that no such recovery of looted amount was ever effected in his presence and even could not identify his currency notes.
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13. In view of the above discussions, I am of the considered view that the prosecution has not been able to bring home the guilt of the accused. No incriminating evidence has come on the record file to connect the accused, Anil @ Sonu Phoda with the offences punishable under sections 392/394/397/411/34 IPC. Accordingly, the accused, Anil @ Sonu Phoda deserves acquittal. Hence, he is acquitted for the offences punishable under sections 392/394/397/411/34 IPC.
14. Accused be released, if not required in any other case.
File be consigned to the record room.
ANNOUNCED IN THE OPEN COURT (RAMESH KUMAR)
TODAY i.e. ON 06.07.2012 ADDL. SESSIONS JUDGE,
ROHINI COURTS, DELHI
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