Delhi District Court
State vs Satish @ Hakla on 23 May, 2023
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
SC No. : 27292/2016
FIR No. : 02/2016
Under Section : 392/397 IPC
PS : Nabi Karim
CNR No. : DLCT01-000277-2016
State Versus Satish @ Hakla
S/o Sh. Ashok
R/o H. No. 16/5, MCD Quarters
Aarakasha Road, Nabi Karim
Delhi
Date of Institution : 21.04.2016
Date of Arguments : 23.05.2023
Date of Judgment : 23.05.2023
JUDGMENT
INTRODUCTION:
1. The case of the prosecution is that on 01.01.2016 at about 11.15 p.m. at Ramleela Park, Aarakasha Road, Pahar Ganj, Delhi, within jurisdiction of PS Nabi Karim, the accused robbed gold chain weight 10 grams from Mr. Subhash Chander Dass (Hereinafter 'the complainant') by using a country made pistol.
Thus, the accused is prosecuted for offence punishable under Section 392 read with Section 397 of 'The Indian Penal Code, 1860' (In short 'IPC').
2. It is further case of the prosecution that the accused was found in conscious possession of a country made pistol without any permit or license in contravention of Section 3 of 'The Arms Act, 1959' punishable under Section 25 of 'The Arms Act, 1959'. Thus, the accused is prosecuted for offence under Section 25 of 'The Arms Act, 1959'.
FIR No. 02/2016 State vs. Satish @ Hakla Page No. 1 of 14 CHARGE-SHEET:
3. The case of the prosecution, as surfaced in the statement of the complainant, is that on 31.12.2015, the complainant, a resident of Cooch Bihar, West Bengal, came to Delhi and was staying in Hotel Ratandeep, Aarakasha Road, Pahar Ganj, Delhi. On 01.01.2016 at about 11.15 p.m., the complainant was proceeding on foot for his hotel after having dinner in Gurudev Dhaba. When he reached near Rachna Hotel, the accused dashed against him. However, the complainant ignored it. When the complainant reached near Leelaram Park, Aarakasha Road, the accused followed him and stated that as to why he had pushed him. Thereafter, the accused caught his collar and in that process, the gold chain having pendent of rudraksha which the complainant was wearing fell on road. The complainant picked the gold chain. The accused asked him to hand over the chain to him. The complainant protested. The complainant refused to give his gold chain to the accused. He had taken out his mobile phone to make a call to the police. The accused taken out a country made pistol and asked him to hand over the said chain to him and otherwise, he shoot him. The accused robbed gold chain weighing about 10 grams and escaped. The complainant informed his friend, namely, Ganesh regarding the incident who made call at 100.
4. On 01.01.2016 at about 11.30 p.m., PW-1 ASI Amir, Duty Officer, PS Nabi Karim received a PCR call regarding 'chain snatching' and he reduced the said information into writing in roznamcha register vide DD No. 51A Ex.PW1/A. FIR No. 02/2016 State vs. Satish @ Hakla Page No. 2 of 14
5. On 01.01.2016 at about 11.30 p.m., PW-14 ASI Hari Kishan alongwith PW-4 Ct. Jagdish, on receipt of DD No. 51A, reached at the place of incident at Ramleela Park, Arakansha Road, Pahar Ganj, Delhi where he met the complainant.
6. PW-14 ASI Hari Kishan recorded statement of the complainant Ex.PW7/A and made endorsement Ex.PW14/A and handed it over to PW-4 Ct. Jagdish for being taken to police station for registration of case.
7. PW-14 ASI Hari Kishan prepared site plan of the place of incident Ex.PW14/B at the instance of the complainant.
8. On 02.01.2016 at 12.25 a.m., PW-2 HC Radhey Shyam, Duty Officer, PS Nabi Karim, on receipt of tehrir from PW-14 ASI Hari Kishan through PW-4 Ct. Jagdish, registered FIR No. 02/2016 under Section 392/397 IPC Ex.PW2/A. He assigned investigation to PW-14 ASI Hari Kishan and handed over original tehrir and a copy of FIR to PW-4 Ct. Jagdish for being given to PW-14 ASI Hari Kishan. PW-4 Ct. Jagdish returned to the place of incident and handed over original tehrir and a copy of FIR to PW-14 ASI Hari Kishan.
9. During investigation, PW-14 ASI Hari Kishan checked CCTV footages of the area. However, he could not find any clue regarding the accused.
10. On 02.01.2016, PW-6 Ct. Manoj Kumar Rohilla, Computer Operator, SCRB, Kamla Market, Delhi prepared a sketch / portrait of the suspect Ex.PW6/A at the instance of the complainant. He sent the said portrait to Crime Branch. He also affixed the said portrait at public places. However, he could not obtain any clue regarding the accused. On the direction of SHO, further investigation was assigned to PW-5 SI Pradeep Kumar.
FIR No. 02/2016 State vs. Satish @ Hakla Page No. 3 of 14
11. On 11.01.2016, PW-5 SI Pradeep Kumar received a secret information that the suspect in the portrait is the accused. Thereafter, he alongwith PW-3 Ct. Arun Tomar and PW-12 Ct. Hemant Kumar apprehended the accused in front of Gali No. 10, Multani Dhanda on Sadar Thana Road.
12. On 11.01.2016 at about 06.30 p.m., PW-5 SI Pradeep Kumar interrogated the accused and thereafter, he arrested him at Sadar Thana Road, Pahar Ganj vide arrest memo Ex.PW3/A and recorded his disclosure statement Ex.PW3/C. He kept him in muffled face.
13. On 12.01.2016, PW-5 SI Pradeep Kumar produced the accused before the jurisdictional Magistrate in muffled face and he moved an application for his Test Identification Parade Ex.PW8/A.
14. On 12.01.2016, PW-8 Ms. Riya Guha, Ld. MM, Tis Hazari Court, Delhi fixed the application for TIP for 19.01.2016.
15. On 19.01.2016, PW-8 Ms. Riya Guha, Ld. MM, Tis Hazari Court, Delhi conducted Test Identification Parade (TIP) in Tihar Jail. The complainant correctly identified the accused in Test Identification Parade (TIP), vide TIP proceedings Ex.PW8/B.
16. On 21.01.2016, PW-5 SI Pradeep Kumar again interrogated the accused and recorded his supplementary disclosure statement Ex.PW4/A wherein he disclosed that he had concealed a country made pistol in a polythene beneath RPF Booth, Pul Paharganj. The accused led him and PW-4 Ct. Jagdish to RPF Booth, Pul Pahar Ganj, and got recovered one country made pistol Ex.P1 from the said Booth which was kept in a polythene in hidden condition.
FIR No. 02/2016 State vs. Satish @ Hakla Page No. 4 of 14
17. PW-5 SI Pradeep Kumar prepared sketch of the country made pistol Ex.PW4/B. He kept the said country made pistol in a cloth parcel and sealed it with his seal having impression 'NBKRM-II' and seized it vide seizure memo Ex.PW4/C. He prepared pointing out memo of the place of incident Ex.PW4/D at the instance of the accused. He deposited the said sealed parcel in police malkhana.
18. PW-11 Mr. V. R. Anand, Assistant Director (Ballistics), FSL, Rohini, Delhi examined the sealed parcel sealed with the seals having impression 'NBKRM-II'. He opined that country made pistol 'F1', exhibited as Ex.PX1, is a fire-arm under 'The Arms Act, 1959', vide Ballistics report Ex.PW11/A.
19. On 07.12.2016, PW-13 Mr. Chinmoy Biswal, Addl. DCP, Central District, Delhi granted sanction under Section 39 of 'The Arms Act, 1959' Ex.PW13/A for prosecution of the accused for committing offence under Section 25 of 'The Arms Act, 1959'.
20. On conclusion of investigation, PW-5 SI Pradeep Kumar charge-sheeted the accused for offences under Section 392 read with Section 397 IPC and 25 of 'The Arms Act, 1959'. COMMITTAL PROCEEDINGS:
21. Vide order dated 12.04.2016, the jurisdictional Magistrate committed the case to the Court of Session. CHARGE:
22. Vide order dated 28.04.2016, the accused was charged for committing offence under Section 392 read with Section 397 IPC. On 21.04.2022, the accused was also charged for committing offence under Section 25 of 'The Arms Act, 1959'.
He pleaded not guilty and claimed trial.
FIR No. 02/2016 State vs. Satish @ Hakla Page No. 5 of 14 PROSECUTION EVIDENCE:
23. The prosecution examined 14 witnesses, as under:
The witnesses Description of the witnesses PW-1 ASI Amir DD writer.
PW-2 HC Radhey Shyam Duty Officer, PS Nabi Karim.
PW-3 Ct. Arun Tomar Arrest witness. PW-4 Ct. Jagdish Taken rukka to PS for registration of case. PW-5 SI Pradeep Kumar 2nd Investigating Officer. PW-6 Ct. Manoj Kumar Prepared portrait of the suspect. PW-7 Subhash Chnder Dass The complainant.
PW-8 Ms. Riya Guha, Ld. MM Conducted TIP of the accused. PW-9 Ct. Samay Singh Deposited 2 sealed parcels in FSL. PW-10 ASI Wahid Ahmed MHC (M), PS Nabi Karim. PW-11 Mr. V.R. Anand Ballistics expert.
PW-12 ASI Hemant Kumar Arrest witness. PW-13 Mr. Chinmoy Biswal Sanctioning Authority. PW-14 ASI Hari Kishan 1st Investigating Officer. EXAMINATION OF THE ACCUSED:
24. Incriminating circumstances appearing in evidence were explained to the accused, as required under section 313 Cr.P.C. He denied each and every circumstance appearing in evidence against him. He stated that he did not make disclosure statement or supplementary disclosure statement. He stated that nothing was recovered from his possession. He pleaded innocence and claimed false implication. APPEARANCE:
25. I have heard Mr. Amit Dabas, Ld. Addl. PP for the State and Mr. P.K. Garg, Advocate for the accused.
FIR No. 02/2016 State vs. Satish @ Hakla Page No. 6 of 14 CONTENTIONS OF THE PROSECUTION:
26. Ld. Addl. PP for the State contended that though the complainant has not identified the accused. However, the complainant identified him in TIP proceedings. He contended that the accused was found in conscious possession of a country made pistol without license in breach of Section 3 of 'The Arms Act, 1959'. He contended that the accused has not given any explanation for his knowledge regarding concealment of country made pistol Ex.PX1 beneath RPF Booth near Pul Pahar Ganj, Delhi. He contended that PW-5 SI Pradeep Kumar and PW-4 Ct.
Jagdish identified country made pistol Ex.PX1 recovered at the instance of the accused. He contended that PW-5 SI Pradeep Kumar deposited the country made pistol in sealed condition in police malkhana with PW-10 ASI Wahid Ahmed, MHC(M) on the same day, vide entry at Sl. 1336/16. He contended that PW- 10 ASI Wahid Ahmed, MHC (M) and PW-9 Ct. Samay Singh, parcel depositor proved that the sealed parcel was not tampered since the date of its deposit in police malkhana to the date of its deposit in FSL. He contended that PW-11 Mr. V.R. Anand, Ballistics Expert proved that the seals on the sealed parcels containing country made pistol Ex.PX1 were not tampered and it is a fire-arm under the Arms Act, 1959, vide Ballistics report Ex.PW11/A. He contended that absence of public witnesses is not significant as the police officials are competent witnesses and their evidence cannot be doubted on ground of absence of public witness during search and seizure in the absence of any enmity or malafide on their part. He contended that there is credible evidence that the accused committed offence under Section 25 of 'The Arms Act, 1959'.
FIR No. 02/2016 State vs. Satish @ Hakla Page No. 7 of 14 CONTENTIONS OF THE DEFENCE:
27. Ld. Defence Counsel contended that the complainant has not identified the accused as the person who robbed him on gun point. He contended that recovery of country made pistol at the instance of the accused is highly doubtful. He contended that the recovery was effected after 10 days from the date of arrest of the accused on the basis of a supplementary disclosure statement.
He contended that PW-5 SI Pradeep Kumar did not associate any public witness though the recovery was effected from a densely populated area having several hotels and shops near it. He contended that there was delay of more than 2 months in sending the country made pistol to FSL for ballistics report. He contended that retention of case exhibits in police malkhana for such a considerable time creates doubt on the case of the prosecution. He contended that there is no credible evidence to prove that the country made pistol was recovered at the instance of the accused. He contended that the prosecution has failed to prove charges against the accused.
JUDICIAL PRECEDENTS:
28. In Venu @ Venugopal & Ors. vs. State of Karnataka, (2008) 3 SCC 94, Hon'ble Supreme Court of India held, as under:
"8. Section 392 IPC provides for punishment for robbery. The essential ingredients are as follows:
1. Accused committed theft.
2. Accused voluntarily caused or attempted to cause
(i) death, hurt or wrongful restraint;
(ii) fear of instant death, hurt or wrongful restraint.
FIR No. 02/2016 State vs. Satish @ Hakla Page No. 8 of 14
3. He did either act for the end
(i) to commit theft;
(ii) while committing theft;
(iii) in carrying away or in the attempt to carry away property obtained by theft.
10. The provision defines robbery which is theft or extortion when caused with violence of death, hurt or wrongful restraint. When there is no theft committed, then as a natural corollary there cannot be robbery. Robbery is only an aggravated form of offence of theft or extortion. Aggravation is in the use of violence of death, hurt or restraint. Violence must be in course of theft and not subsequently. It is not necessary that violence actually should be committed but even attempt to commit it is enough."
29. In Ganesan vs. State Rep. by Station House Officer, 2021 SCC OnLine SC 1023, Hon'ble Supreme Court of India held, as under:
"47. The aforesaid view has been subsequently reiterated by this Court in the case of Dilawar Singh (Supra) and in paragraphs 19 to 21 it is observed and held as under:
"19. The essential ingredients of Section 397 IPC are as follows:
1. The accused committed robbery.
2. While committing robbery or dacoity
(i) the accused used deadly weapon
(ii) to cause grievous hurt to any person (iii) attempted to cause death or grievous hurt to any person.
3. ''Offender'' refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It is only envisages the individuals liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision. But the other accused are not vicariously liable under that section for acts of the co-accused."
FIR No. 02/2016 State vs. Satish @ Hakla Page No. 9 of 14
(a) Whether the accused committed offence under Section 392 read with Section 397 IPC?
30. The complainant is the sheet anchor of the case of the prosecution. However, he has not supported the case of the prosecution. He nipped the bud of the case of the prosecution before it could blossom. His evidence uprooted the case of the prosecution in so far as the case of the prosecution against the accused under Section 392 read with Section 397 IPC is concerned. The complainant appeared as PW-7. He has not identified the accused as the person who robbed him on gun point. Identification of the accused in TIP is a corroborative evidence. In the absence of substantive evidence of identification of the accused before the Court, identification in Test Identification Parade is insignificant. He deposed, as under:
"I am residing on the abovesaid address and deal in the business of medicines. On 31.12.2015 I had come to Delhi along with my friend and had stayed in Hotel Ratandeep, Pahar Ganj. On 01.01.2016 at about 11.00 p.m. I along with my friend was returning after food and reached near a hotel. I found one boy standing and when I passed him suddenly he pretended to falling on me. I ignored him and moved ahead thinking that perhaps he had consumed liquor. I moved some distance and the said boy came to me running and started abusing me and said that I had given a push to him. He caught hold of my collar and tried to take my gold chain. In that process my gold chain fell on the ground when I lifted the gold chain. The said boy asked me to hand over the chain to him. The boy snatched the chain from my hand, however the pendent remained in my hand and he took the gold chain from me. I took out mobile from my pocket to make a call to police. The said boy took out a pistol from his back side and put on my chest and threatened me to kill. He asked me to run away from there. I ran away from the spot. I called my friend Ganesh. He called police by calling 100 number. After some time, police came at the spot. Police recorded my statement, which is Ex.PW7/A bearing my signatures at point A. FIR was registered.
FIR No. 02/2016 State vs. Satish @ Hakla Page No. 10 of 14 During the course of investigation I went to PS Kamla Market where I got the sketch of the offender prepared, which is already Ex.PW6/A bearing my signatures at point A. I had also gone to Tihar Jail where Test Identification Parade of the accused was got conducted and I had identified the accused in that proceedings. Today, I have seen the proceedings Ex.PW5/A, which bears my signatures at point X. I cannot identify the said offender today as more than one and half year has passed and it was slightly dark at the time of incident."
31. The prosecution cross-examined the witness. However, the prosecution could not elicit anything from his cross-examination. The complainant stated that the accused is not the person who robbed him. The relevant part of his cross- examination is as under:
"At this stage, the accused Satish @ Hakla, present in the court is shown to the witness, who states that this person was not the same person who had robbed him. It is wrong to suggest that accused Satish @ Hakla, present in the court today, is the same person, who had robbed me. It is wrong to suggest that since Satish @ Hakla had robbed me so I had identified him in judicial TIP conducted at Tihar Jail. It is wrong to suggest that I am deliberately not identifying the accused, today in the court as I have been won over by the accused."
32. It is a settled principle of law that police officials are competent witnesses. Their evidence cannot be doubted on the sole premise that no public witness was associated during search and seizure proceedings. However, their evidence must be examined with due care and circumspection. If the public witnesses were available or could be associated during search and seizure proceedings, want of efforts to associate public witness makes the case of the prosecution fragile.
FIR No. 02/2016 State vs. Satish @ Hakla Page No. 11 of 14
33. There must be credible evidence that country made pistol was properly sealed and preserved in malkhana and there was no scope of tampering of seal till examination by Ballistics Expert. The recovery of country made pistol Ex.PX1 at the instance of the accused does not inspire confidence for four reasons. Firstly, the accused was arrested on 11.01.2016 and the recovery of country made pistol was effected pursuant to supplementary disclosure statement recorded on 21.01.2016. Secondly, PW-5 SI Pradeep Kumar categorically stated that he had not requested any permanent resident or shopkeeper to join search and seizure proceedings. Thirdly, PW-5 SI Pradeep Kumar did not state anything regarding the status of seal used for sealing the parcel containing the country made pistol Ex.PX1. Fourthly, the sealed parcel was deposited in police malkhana on 21.01.2016. However, it was sent for forensic examination after two months on 29.03.2016 i.e. after delay of more than two months. Retention of case property in police malkhana for such a considerable period further makes the case of the prosecution doubtful regarding authenticity and credibility of seizure, preservation and safety of the sealed parcel. Availability of the case property in police malkhana for such a long period enhances probability of tampering of the case property.
34. Therefore, the prosecution failed to lead credible evidence to prove seizure of country made pistol Ex.PX1 at the instance of the accused.
35. The prosecution failed to bring home charges under Section 392 read with Section 397 IPC and 25 of 'The Arms Act, 1959'.
FIR No. 02/2016 State vs. Satish @ Hakla Page No. 12 of 14 CONCLUSION:
36. Accordingly, the accused, namely, Satish @ Hakla is acquitted from charges under Section 392 read with Section 397 IPC and 25 of 'The Arms Act, 1959'. Digitally signed by SANJAY SANJAY SHARMA SHARMA Date:
2023.05.24 17:28:50 +0530 Announced in the open Court SANJAY SHARMA-II on this 23rd May, 2023 Addl. Sessions Judge-03 (Central) Tis Hazari Courts, Delhi FIR No. 02/2016 State vs. Satish @ Hakla Page No. 13 of 14 State vs. Satish @ Hakla CNR No.: DLCT01-000277-2016 SC No. 27292/2016 FIR No. 02/2016 Under Section 392/397 IPC PS Nabi Karim 23.05.2023 Present : Mr. Amit Dabas, Ld. Addl. PP for the State.
Mr. P.K. Garg, Advocate for the accused.
The accused is produced from JC.
The Court has examined the accused under Section 313 Cr.P.C. Ld. Counsel for the accused stated that he does not want to lead defence evidence. The Court has heard final arguments. Vide separate judgment announced in the open Court, the accused, namely, Satish @ Hakla is acquitted from offence under Section 392 and 397 IPC as well as 25 Arms Act. The accused is directed to furnish personal bond in the sum of Rs. 10,000/- with one surety in the like amount, as required under Section 437A Cr.P.C. A copy of order be enclosed with custody warrant of the accused. File be consigned to record Digitally signed room. by SANJAY SANJAY SHARMA SHARMA Date:
2023.05.24 17:29:03 +0530 Sanjay Sharma-II ASJ-03, Central District Tis Hazari Courts, Delhi NK 23.05.2023 FIR No. 02/2016 State vs. Satish @ Hakla Page No. 14 of 14