Delhi District Court
State vs Vivek @Vasu on 5 January, 2024
IN THE COURT OF MS. BHARTI BENIWAL,
METROPOLITAN MAGISTRATE-11, DWARKA COURT,
NEW DELHI
FIRNo.072/2018
PS Janakpuri
Under Section 392/34 IPC and 411 IPC
State Vs. Vivek @ Vasu
CNR No. : DLSW020166322018
Crl. Case No. : 3336/2018
Date of institution of the case : 12.04.2018
Date of commission of offence : 13.02.2018
Name of the complainant : Prem Singh
Name of accused and address : 1.Vivek @ Vasu
S/o Sh.Arun Gupta
R/o B2/459, Sultanpuri,
New Delhi
2.Dinesh Kumar @ Pape
S/o Sh.Ram Kumar
R/o A-2/356, Sultanpuri,
New Delhi
3.Rahul @ Sunny
S/o Sh.Satish Kumar
R/o B2/199, Sultanpuri,
Delhi.
FIR no.072/2018
State Vs. Vivek @ Vasu &Ors. Page no.1/13
Offence complained of : Under Section 392/34 IPC
and 411 IPC
Ld. APP for the State : Sh.Amit Sehrawat
Plea of the accused : Pleaded not guilty
Final order : Acquittal
Date on which judgment reserved : 30.11.2023
Date of judgment : 05.01.2024
JUDGMENT
1. The accused persons have been charge sheeted for committing offences punishable under Section 392/34 IPC and 411 IPC
2. It has been alleged by the prosecution that on 13.02.2018 at about 07 : 30 PM at Dabri Flyover Pankha Road, Janakpuri, accused Vivek, Dinesh Kumar and Rahul in furtherance of their common intention had robbed mobile phone make Lava Black Colour and Rs.3800/- from complainant Sh.Prem Singh and thereby, committed offence under Section 392/34 IPC. Secondly, on 14.02.2018 at Jeewan Park Bus Stand near Pankha Road, accused Vivek @ Vasu was found in possession of Lava Mobile Phone robbed from the complainant Sh.Prem Singh on 13.02.2018 which he had dishonestly received or retained knowingly or having reason to believe to be the stolen property and thereby, committed an offence under Section 411 IPC.
3. Complaint was made and FIR was registered. IO conducted the investigation. After completion of investigation, the FIR no.072/2018 State Vs. Vivek @ Vasu &Ors. Page no.2/13 present charge sheet was filed. Cognizance of offence was taken and accused was summoned to face the trial.
4. Thereafter, copy of charge sheet was supplied to the accused under Section 207 CrPC. After giving opportunity to state as well as accused persons for making submissions on charge, charge for offences under Section 392/34 IPC and 411 IPC was served upon the accused persons to which they pleaded not guilty and claimed trial.
5. Thereafter, prosecution was called upon to adduce its evidence. The prosecution in order to prove its case examined as many as 2 witnesses.
6. Vide separate statement recorded u/s 294 Cr.P.C, accused had admitted the following documents i.e. FIR No.072/2018 registered by ASI Kawar Pal vide Ex.P1, Certificate u/s 65B of Indian Evidence Act issued by ASI Kawar Pal vide Ex.P2 and Endorsement on rukka by ASI Kawar Pal Ex.P3. Hence, the above documents were ordered to be read in evidence without its formal proof. PE stands closed vide order of this Court and matter was listed for Statement of accused Under Section 313 CrPC.
7. Statement of accused persons under Section 313 Cr.P.C. was recorded wherein they denied all the allegations against them and stated that they had been falsely implicated in the present case. Accused persons chose not to lead DE.
FIR no.072/2018State Vs. Vivek @ Vasu &Ors. Page no.3/13
8. Final arguments were thereafter heard on behalf of state as well as the accused persons.
9. I have heard the submissions made on behalf of the parties and have also carefully perused the material available on record.
10. On the basis of evidence on record, following points arise for determination:
(i) Whether prosecution has been able to prove beyond all reasonable doubt that on 13.02.2018 at about 7:30Pm at Dabri Flyover Pankha Road, Janak Puri, District Centre, New Delhi, accused Vivek @ Vasu, Dinesh Kumar and Rahul @ Sunny in furtherance of their common intention committed robbery of Lava Black colour mobile phone and cash amounting to Rs. 3,800/- from the possession of complainant Prem Singh as alleged?
(ii) Final order.
11. For the reasons to be recorded hereinafter while discussing the afore-mentioned points for determination, my findings on the said points are as under:
(i) No.
(ii) Accused Vivek @ Vasu, Dinesh Kumar and Rahul @ Sunny are hereby acquitted as per operative part of the judgment.FIR no.072/2018
State Vs. Vivek @ Vasu &Ors. Page no.4/13 REASONS FOR FINDINGS
12. To prove the allegations against accused, the prosecution examined complainant Prem Singh who stepped into the witness box as PW-1. He deposed that on 13th of 02.2018, he was going to his house from Sitapuri. That when he reached near Dabri Flyover, Pankha Road, he sat on the footpath as he was not feeling well. That three boys attacked him. One of them held the witness from his backside and the other person has his hands. The third person snatched his mobile phone make Lava (black colour) and cash of Rs.1,300/- from his pocket. Thereafter, all of them fled away from the spot and the witness had gone to his house. On the next day, he gave his complaint which is Ex.PW1/A to the police.
That the investigating officer had prepared the site plan which is Ex.PW1/B at his instance. All the accused persons were present in the court and were correctly identified by the witness.
13. He further stated that the accused persons were arrested in his presence and his mobile phone was recovered from the possession of the accused in his presence.
14. The witness stated that the site plan of the seizure memo Ex.PW1/C and seizure memo of the mobile phone, which is Ex.PW1/D, bears his signatures. That the accused persons were conducted in his presence and their personal search was also conducted in his presence.
FIR no.072/2018State Vs. Vivek @ Vasu &Ors. Page no.5/13
15. During the cross examination, the witness stated that he had consumed Bhaang and he felt Busy you do consumption of the bhaang. He stated that he had gone to his place after the incident and went to the police station on the next date. He further stated that he got a call from police station and he was informed that his mobile phone was recovered. He further stated that he did not know anything about the accused persons as he was in unconscious state due to consumption of Bhaang. He categorically stated that he does not know about the persons who had robbed his mobile phone.
16. The witness was re-examined by Ld. Additional Public Prosecutor as he identified the accused persons in his examination in chief and denied to their involvement during cross- examination. In the re-examination, the witness admitted that he was under the influence of Bhaang and could not see the persons who had robbed him. He denied the suggestion that he had identified the accused persons and got his mobile phone recovered from possession of one of them.
17. PW2 ASI Sunil Kumar (Investigating Officer) stepped into the witness box and stated that on 14.02.2018, complainant came to the police station and gave his complaint. He prepared rukka Ex.PW2/A and handed over the scene to the duty officer for registration of FIR. Thereafter, he along with constable Satpal and complainant went to the spot and repaired the site plan and the instance of complainant. Meanwhile, the investigating officer received information from secret informer that three boys standing at Bus Stand Jeevan Park in a suspicious situation. Thereafter, they had proceeded to Bus Stand Jeevan Park. That the FIR no.072/2018 State Vs. Vivek @ Vasu &Ors. Page no.6/13 complainant identified the accused persons and pointed out towards them. The witness apprehended three accused persons and the mobile phone of the complainant was recovered from the possession of accused Vivek. The witness enquired about the robbed amount, to which, accused persons disclosed that the amount has been spent by them. IO seized the mobile phone vide seizure memo Ex.PW1/C. The witness prepared the pointing out memo actor instance of accused persons, already Ex.PW1/N. The witness arrested the accused persons and conducted their personal search. That the witness has also seized invoice of robber mobile phone. The witness correctly identified the accused persons.
18. During his cross-examination, he stated that the complainant came in the police station on 14.02.2018 at about 7 am. The witness admitted that he had not enquired from the complainant the reason for making the complaint after one day. He denied the suggestion that the said delay was caused as he had instructed the complainant to make a false case to implicate the accused persons. He denied the suggestion that the accused persons were called in the police station and mobile phone of the complainant was falsely planted on them.
19. It is the case of the prosecution that on 13.02.2018 at about 7:30Pm at Dabri Flyover Pankha Road, Janak Puri, District Centre, New Delhi, accused Vivek @ Vasu, Dinesh Kumar and Rahul @ Sunny in furtherance of their common intention committed robbery of Lava Black colour mobile phone and cash amounting to Rs. 3,800/- from the possession of complainant Prem Singh, and thereby committed offence punishable under section 392 r/w 34 IPC. That the mobile phone was recovered from FIR no.072/2018 State Vs. Vivek @ Vasu &Ors. Page no.7/13 possession of accused Vivek, and thereby committed offence punishable under section 411 IPC.
20. To bring home the culpability of accused u/s 392 IPC, it is pertinent that relevant provisions of law are first read. Offence of "Robbery" defined under Section 390 IPC is reproduced herein below:
Section 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."FIR no.072/2018
State Vs. Vivek @ Vasu &Ors. Page no.8/13
21. The Hon'ble High Court of Delhi in case titled "Rakesh vs. State of NCT of Delhi (decided on 20.07.2010) observed:
"Robbery as defined in section 390 IPC is an aggravated form of theft or extortion. Theft is robbery if the accused in order to commit a theft or while committing the theft or carrying away or attempting to carry away the stolen property voluntarily causes or attempts to cause death or hurt to any person and puts the other person in wrongful restraint, fear of instant death or instant hurt or of instant wrongful restraint."
22. "Offence of Theft" as defined under Section 378 IPC is reproduced herein below:
"Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft. Explanation 1: A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth. Explanation 2: A moving effected by the same act which affects the severance may be a theft. Explanation 3: A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it. Explanation 4: A FIR no.072/2018 State Vs. Vivek @ Vasu &Ors. Page no.9/13 person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal. Explanation 5: The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied."
23. Section 392 prescribes punishment in case of robbery. Under Section 392 IPC an accused can be punished with up to 10 years of rigorous imprisonment and fine and up to 14 years of rigorous imprisonment when robbery is committed on highway between sunset and sunrise. For a case to fall under section 392 IPC in case of theft amounting to robbery, actual theft as defined in section 378 IPC should be committed. In case titled "Malkhan Singh vs. State of Haryana 1994 SCC (Crl) 1422)", the Hon'ble Supreme Court of India held that for Section 392 IPC to apply, the prosecution has to establish that during the course of commis- sion of the offence of theft the offender had caused or had intended to cause threat of death or hurt or wrongful restraint.
24. Ld. APP for the State emphasized that PW1/com- plainant has duly identified the accused in the present case and navigated the attention of the court to the testimony of the complainant and asserted that the said the said witness unimpeachably proved the commission of offence by the accused and contended that complainant/victim/PW-1 has no reason to falsely implicate the accused persons as they are not acquainted with each other and as recovery of robbed mobile phone was FIR no.072/2018 State Vs. Vivek @ Vasu &Ors. Page no.10/13 recovered from the possession of the accused Vivek, the same reinforces the credibility of prosecution case.
25. Ld. Counsel for accused per contra argued that the case of the prosecution is far from the touch stone of standard of beyond the reasonable doubt. He contended that the entire story of prosecution rests on the testimony of the complainant and argued that absence of any public witnesses renders the prosecution version highly unreliable as the accused persons were actually called by the IO in the police station and has been falsely implicated in the present case.
26. At the outset, it would be apt to allude to the cardinal principle of criminal jurisprudence that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence as it is supposed to stand on its own legs and cannot derive benefits whatsoever from the weakness, if any, in the defence of accused. Further, it is also well settled law that burden of proof in a criminal trial throughout the trial lies upon prosecution and never shifts to accused who is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt entitles him to acquittal.
27. It would, therefore, be significant to allude to examination of PW Prem Singh wherein he stated that it was intoxicated on the date of incident and he could not even recall the faces of persons who had robbed his mobile phone. He did not support the case of the prosecution even to the extent that he failed to identify the accused persons in the court. So far the recovery of robbed mobile phone is concerned, the witness/complainant FIR no.072/2018 State Vs. Vivek @ Vasu &Ors. Page no.11/13 admitted in the cross-examination that he was called by the investigating officer and was informed that his mobile phone was recovered. He denied the fact that the mobile phone was recovered from accused Vivek in his presence. It has already come on record that the investigating officer received information from a secret informer about the presence of accused persons at a bus stop. It is a matter of common sense that independent persons are always present at the bus stop but despite that, the investigating officer did not bother to join independent witnesses in the investigation. No explanation has been offered by the prosecution by the independent witnesses were not joined in the investigation. Such manner of investigation does not inspire confidence in the court. Another circumstance which casts a doubt on the version of the prosecution is that the investigating officer in his cross- examination admitted that the complainant came to the police station at about 7 am and give his complaint, and soon after the registration of FIR, they had proceeded to the spot. I have been used the documents on record. The FIR got registered at 7:05am. The investigating officer stated that after preparation of the site plan, they had proceeded to the bus stop where the accused persons were standing. I have also perused the arrest memo of accused persons i.e. Ex.PW1/F, Ex.PW1/G and Ex.PW1/H. The prosecution has not explained about the time at which they received information from the secret informer about presents of the accused persons. The accused persons but arrested at 5pm i.e after a time period of 9hours (approx.). It is highly improbable that the investigating officer was with the complainant for such a long time. No departure entries have been filed by the prosecution/investigating officer to show that he was actually present and a spot for such a long time. All these facts speaking FIR no.072/2018 State Vs. Vivek @ Vasu &Ors. Page no.12/13 together make the prosecution case highly doubtful.
28. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
FINAL ORDER
29. 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 Vivek @ Vasu, Dinesh Kumar and Rahul @ Sunny are hereby acquitted of the offence punishable under Section 392/411/34 IPC.
Pronounced in open Court on this 5th Day of January, 2024.
This judgment consists of 13 signed pages.
BHARTI BENIWAL
Metropolitan Magistrate-11, South West,
Dwarka Courts, New Delhi
05.01.2024
FIR no.072/2018
State Vs. Vivek @ Vasu &Ors. Page no.13/13