Delhi District Court
State vs . Roop Kumar on 28 January, 2012
IN THE COURT OF SH. HEM RAJ: METROPOLITAN MAGISTRATE:
(WEST)09:TIS HAZARI COURTS:DELHI
STATE Vs. ROOP KUMAR
FIR No : 283/98
U/S : 506 IPC
P.S : VIKAS PURI
1. Serial No. of the Case : 93/2/10
2. Unique ID No, of the : 0240R010086981998
3. Date of Commission of Offence : 17.12.1997
4. Date of institution of the case : 05.11.1998
5. Name of the complainant : Sh. Bhupinder Chaudhary
6. Name of accused & address : Roop Kumar
S/o Sh. Asha Ram
R/oVillageTajpur, Distt. Sonepat,
Haryana.
7. Offence complained : U/S 506 IPC.
8. Offence Charged with : U/S 506 (2) IPC
9. Plea of Accused : Pleaded Not Guilty.
10.Final Order : Acquitted
11.Date of Final Order : 28.01.2012
J U D G M E N T
1 Accused Roop Kumar was sent for trial on the allegations that he alongwith his coaccused (Not Arrested) threatened the complainant pointing revolver on him to cause his death. Hence, the commission of the FIR No. 283/1998 STATE V/s ROOP KUMAR PAGE No.1/11 offences under sections 506 (2) IPC was alleged against him. 2 In compliance of Section 207 Cr. P.C. the copy of the charge sheet along with other documents were supplied to the accused. Later on, vide order dated 16.03.1999, charge for offenses under Section 506 (2) IPC was framed my Ld. Predecessor to which the accused persons pleaded not guilty and claimed trial.
3 In order to prove its case against the accused the prosecution examined a total number of four witnesses in all. 4 PW1 was HC Darshan who was the DO in this case who proved the copy of the FIR as Ex.PW1/A. He was not crossexamined by the accused.
5 PW2 Bhupender Chaudhary was the complainant. He was the Proprietor of the Gas Agency where the accused Roop Kumar was the godown Keeper and one Mukesh Kumar was the Manager. He deposed that on 02.09.1997, accused Roop Kumar handed over the keys of the go down to the said Mukesh Kumar without information and on 08.09.1997, he FIR No. 283/1998 STATE V/s ROOP KUMAR PAGE No.2/11 went there and physically verified the stock and found 306 cylinders missing. He was informed that Roop Kumar had also taken the cylinders from the go down and FIR No. 640/97, PSModel Town against both the accused persons.
He further deposed that on 17.12.1997, he alongwith PW4 Ashwani Chauhan and PW3 Ramwilas Yadav were going to Gurgaon and at about 7.00 PM when they reached Vikas Puri crossing in Maruti Car occupied by four persons stop in front of his car. Accused Roop Kumar alongwith two other accused persons came out from the car and approached them. Accused Roop Kumar took out a pistol and threatened him to withdraw the aforementioned FIR of PSModel Town or else he would kill him and his family by pointing out the revolver towards him. He went to Gurgaon under fear and on the next day, he filed the complaint with SHO, PSVikas Puri which is Ex. PW2/A. He proved his complaint in the Court Ex. PW2/B. In the crossexamination, he stated that on the day, when he was threatened by the accused , Ashwani and Ram Niwas were with him. He did not give any record of his godown regarding the shortage of 306 cylinders to the police. He stated that on the day of incident, he alongwith Ashwani Kumar and Ram Niwas from his gas agency first went to Buddha Apartments, Pitampura to show one flat to Ramvilas Yadav. The accused FIR No. 283/1998 STATE V/s ROOP KUMAR PAGE No.3/11 came in the vehicle from the right side of the road after crossing the central verge of the Ring Road and parked his car in front of his car. He had the armed license but he did not know the difference between revolver and pistol. The accused Roop Kumar took out the arms from his right side pocket of the pants. He could not tell, if the accused was having a pistol or the revolver but he was having some fire arms. After the incident, the accused went towards Janak Puri. He could not tell the number of the car of the accused. He further stated that accused did not put the fire arm on his body. He denied the suggestion that he filed a false complaint against the accused. He stated that he did not tell the police about the fact that he was informed by the go down keeper of the allied gas agency about the theft of the cylinders. 6 PW3 Ram Niwas was present with the complainant in the car. He deposed on the similar lines as to what has been deposed by the complainant. He was crossexamined at length by the Ld. Defence Counsel. 7 PW4 Aswani Kumar Chauhan was also one of the eye witnesses. He corroborated the testimonies of PW2 and 3 and deposed on the similar lines. He was also crossexamined by the accused.
FIR No. 283/1998 STATE V/s ROOP KUMAR PAGE No.4/11 8 No other witness was examined by the prosecution despite
the opportunities given. The IO was also not examined in this case. 9 In his statement U/S 313 Cr.P.C., he denied that he threatened the complainant. He stated that in FIR No. 640/97, he was not an accused. He claimed to have been falsely implicated by the complainant in this case as the complainant had not paid a sum of Rs. 56,000/ which was deducted by the complainant from his salary by way of a deduction of Rs. 300/ each per month. The accused led defence evidence in his support. 10 DW1 Ram Rattan was the Sarpanch of village of the accused. He deposed that on 17.12.1997, one Panchayat was held in the village between accused and his brother and photocopy of the writing work done in Panchayat was proved by him. He was crossexamined by the Ld. APP for the State.
11 DW2 Chander Prakash also deposed on the similar lines and corroborated the testimony of DW1. He was also crossexamined by the Ld. APP for the State.
FIR No. 283/1998 STATE V/s ROOP KUMAR PAGE No.5/11 12 DW3 HC Shiv Kumar inadvertently examined as DW1. He proved the FIR No. 640/97, U/S 408 IPC, PSModel Towan dated 03.09.1997 as Ex. DW1/A. The certified copy of the chargesheet in the aforementioned FIR was tendered and proved as DW1/B. 13 I have heard the Ld. APP for the State as well as Ld. Counsel for the accused. I have also gone through the oral and documentary evidence available on the record carefully.
14 It has been submitted by Ld. APP that the prosecution has been able to prove the guilt of accused beyond the reasonable doubt It has been further stated that the testimonies of the prosecution witnesses are reliable and trustworthy which have been able to bring home the guilt of the accused beyond the reasonable doubt.
15 On the other hand, the Ld. Defence Counsels have argued that no incriminating material has come on the record against the accused and the prosecution has miserably failed to prove the case beyond reasonable doubt. He further submitted that the perusal of the FIR no 640/1997, PS Model Town, DW1/A and the charge sheet in the same case FIR No. 283/1998 STATE V/s ROOP KUMAR PAGE No.6/11 Ex DW1/B would reveal that the accused had no motive whatsoever to threaten the complainant as the accused was not charge sheeted in the said case. He would further contend that in this case the fire arm has not been recovered by the police.
16 It is well settled principal of law that the prosecution has to prove the case beyond reasonable doubt and has to stand upon on its own legs. The prosecution also cannot draw any strength from the case of the accused howsoever weak it may be. It is also well settled proposition of criminal law that the accused has a profound right not to be convicted for an offence which is not established by the evidential standard of proof beyond reasonable doubt. It is also well settled principle of law that in a criminal trial the burden of proof always rests upon the prosecution and the same never shifts onto the accused.
17 In a nutshell the case of the prosecution was that the accused Roop Kumar had threatened the complainant with dire consequences to withdraw the FIR No. 640/97, PSModel Town. However, the perusal of the said FIR Ex. DW1/A would reveal that the name of the accused has been mentioned in the some other context. The said FIR contains the complaint of FIR No. 283/1998 STATE V/s ROOP KUMAR PAGE No.7/11 PW2 and the perusal of the same also reveals that he raised the allegations only against one Mukesh. I take the liberty to reproduce the relevant portion of this complaint as mentioned in FIR Ex. DW1/A which reads as under: "Lihaja Mukesh Kumar ne khali 306 cylinder hamari gadi se na bhejkar tatha jaali hastakshar karke tatha challan apne pas rakhkar 306 cylinder gayab (Chori) kiye Hai. Kirpa karke kararwai ki jaye"
The chargesheet filed in the said case proved on the record as Ex. DW1/B would also reveal that the accused Roop Kumar has not been chargesheeted by the police and only Mukesh Kumar was chargesheeted by the police for the commission of offence U/S 408/468/471 IPC. In my considered opinion, when the accused Roop Kumar did not have any complaint against him pending filed by the PW2, he had no cause of action to threaten the complainant with dire consequences, if he did not withdraw the FIR Ex. DW1/A withdrawn by him. The allegations against the accused in my opinion have no basis as the accused had no motive at all against the complainant when no FIR was lodged against him. I am fortified in my reasoning from the fact that the FIR Ex. DW1/A is dated 13.09.1997 whereas the incident in the case took place on 17.12.1997 i.e. almost after three months from the registration of the said FIR. The accused would have got sufficient time to know the particulars of the said FIR in those three FIR No. 283/1998 STATE V/s ROOP KUMAR PAGE No.8/11 months as he would have been wanted by the police in the said case, had he been named in the said FIR by the complainant. The position would have been different had the time gap between the registration of the said FIR and the incident would have been much lesser giving no chance to the accused to know whether he has been named in the said FIR or not. In that case, probably the story would have been different as the accused might have been in the state of some sort of confusion about his status in the said FIR. Accordingly, I have no hesitation in holding that the story of the prosecution is palpably false, incredible and cannot be believed on this score alone.
18 Furthermore, as per the case of the prosecution, accused Roop Kumar and his two accomplishes came in a white colour Maruti Car and stopped their car in front of the car of the complainant and then the accused came out from his car and threatened the complainant. As per PW2, the incident took place within half an hour, however, none of the witnesses has deposed about the number of the car wherein the accused Roop Kumar came at the spot alongwith his two associates. Even if, for the sake of the arguments, it is presumed that the incident took ten minutes on the lesser side perhaps, would have been sufficient for all the eyewitnesses to notedown the number of the car of the accused, which would have been FIR No. 283/1998 STATE V/s ROOP KUMAR PAGE No.9/11 the first and the most natural reaction of the all eyewitnesses as by tracing the number, the other associates of the accused could also have been apprehended. But the number of the car of the accused was not noted down by any of the eyewitnesses which belies the common sense. The behavior of the eyewitnesses does not inspire confidence and their testimonies cannot be accepted.
19 Further there are material contradictions in the testimonies of the eyewitnesses. PW2 deposed that the car of the accused came from the right side of the Outer Ring Road, after crossing the Central Verge of the road and then he parked his car in front of the car of the complainant. However, PW3 and 4 had another version in this regard. They deposed that accused came from backside and after overtaking their car, the accused parked his car in front of the car of the complainant. In my opinion, this is the material contradiction as to how the incident unfolded and for the same reason the case of the prosecution lacks confidence. 20 As per the case of the prosecution, accused Roop Kumar is only known to the complainant i.e. PW2 and he was not not known to PW3 and 4. Since they had only a fleeing glimpse of the accused. They identified FIR No. 283/1998 STATE V/s ROOP KUMAR PAGE No.10/11 the accused correctly in the Court. As per the settled law, the IO should have conducted a TIP of the accused from PW3 and 4 but it was not done in this case. Accordingly, first time dock identification in the Court without any previous TIP cannot be relied upon. Therefore, in my considered opinion, the identification of the accused by PW3 and 4 for the first time in the Court after a gap of almost three years does not lend any confidence to the story of the prosecution.
21 Therefore, in view of the discussions made herein above and the facts and circumstances of the present case, in my considered opinion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Hence, the accused Roop Kumar stands acquitted of the offence under Section 506 (2) IPC, he has been charged with. He be set at liberty forthwith. His previous B/Bs and S/Bs are canceled and discharged respectively. His fresh B/Bs are extended for the period of six months from today for the purpose of Section 437A Cr.P.C. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT (HEM RAJ)
TODAY i.e on 28 JANUARY, 2012TH
MM09:WEST:THC
28.01.2012
FIR No. 283/1998 STATE V/s ROOP KUMAR PAGE No.11/11