Delhi District Court
Nitin Kumar vs The State on 11 October, 2021
IN THE COURT OF SHRI ANUJ AGRAWAL,
ADDITIONAL SESSIONS JUDGE-05, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 204296 of 2016
CNR NO. DLSE01-001438-2014
IN THE MATTER OF:
Nitin Kumar
S/o Sh. Narendra Pal
R/o Village Sadarpur,
District Ghaziabad, UP.
.......Appellant
Versus
The State
........Respondent
Instituted on : 15.11.2014
Reserved on : 30.09.2021
Pronounced on : 11.10.2021
JUDGMENT
1. Vide instant appeal, the appellant takes exception to the judgment of conviction dated 16.09.2014 and order on sentence dated 30.10.2014, passed by the learned Metropolitan Magistrate, South-East District, Saket Courts, New Delhi in First Information Report (FIR) No.632/2004, Police Station Kalkaji, under Section 392/34 IPC & 411/34 read with section 482 IPC, titled as 'State vs. Nitin Kumar', whereby CA No. 204296/2016 Nitin Kumar v. State of NCT of Delhi Page No. 1 of 10 Digitally signed by ANUJ AGRAWAL ANUJ Date:
AGRAWAL 2021.10.11 11:26:07 +0530 appellant/accused along with co-accused Neeraj and Dharmender were convicted for offences under section 411/482 IPC. Co-accused were also convicted under section 392/34 IPC vide said judgment. The present appeal has been preferred by appellant/accused Nitin Kumar only, challenging his conviction for offence under section 411/482 IPC and order on sentence emanating therefrom.
2. The FIR in the instant case was registered on the complaint of one Ajmer Singh, who complained about he being robbed of the vehicle bearing registration No. DL14-9426 (of their company), of his mobile phone and of his purse on a knife point by three unknown persons on fateful day. As per complainant, he was taken by said assailants to Gurgaon in his car where they robbed him and fled away with his car.
3. During course of investigation, appellant/accused was apprehended on 31.07.2004 by PW7 SI Vijay Singh alongwith other police officials on the basis of a secret information. Appellant was allegedly driving the robbed vehicle with a fake number plate, wherein co-accused Dharmender and Neeraj were also sitting. The robbed mobile phone of complainant was also recovered from possession of appellant Nitin Kumar.
4. Appellant/accused and co-accused were arrested, further investigation was carried out and a chargesheet alleging offence under section 382/471/482/34 IPC came to be filed on behalf of investigating agency.
5. Trial Court Record transpires that the appellant and other co-
accused were charged for offence under section 392/34 IPC & 411/482/34 CA No. 204296/2016 Nitin Kumar v. State of NCT of Delhi Page No. 2 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date:
2021.10.11 IPC by Ld. Trial Court, to which appellant and co-accused pleaded not guilty and claimed trial.
6. Prosecution to prove its case examined 13 witnesses before Ld. Trial Court, of which PW3 Sh. Inderjeet Singh (the friend of the victim), PW6 Sh. Ajmer Singh (the victim), PW7 SI Vijay Singh and PW13 HC Rajesh Kumar (witnesses to recovery of robbed mobile phone and car) are the material witnesses for the outcome of present appeal. Therefore, their testimonies shall be discussed in detail at later part of this judgment.
7. After, conclusion of prosecution evidence, statement of appellant/accused was recorded U/s 313 Cr. P.C, wherein all the incriminating evidence was put to him. Appellant denied the same as incorrect and claimed to be falsely implicated. As per appellant, he was lifted from Govindpuram, Ghaziabad on 30.07.2004 and falsely implicated in the instant case. Appellant did not lead any defence evidence despite opportunity.
8. Vide impugned judgment, Ld. Trial Court convicted the appellant for offence u/s 411/482 IPC, relying upon the testimony of PW6, PW7 and PW13 having been duly corroborated by other prosecution witnesses. Vide separate order on sentence, appellant was sentenced to imprisonment for a period already undergone by him in custody and was further directed to pay a fine of Rs. 5,000/-.
9. The appellant is aggrieved with the impugned judgment and order on sentence emanating therefrom and has assailed the same on the following grounds:-
CA No. 204296/2016 Nitin Kumar v. State of NCT of Delhi Page No. 3 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date:
2021.10.11
(i) That the impugned judgment of conviction and order on sentence passed by Ld. Trial Court are bases on conjectures and surmises and are liable to be set-aside;
(ii) That Ld. Trial Court failed to appreciate that the onus to prove the case always lies on the prosecution, however in the present case, onus has been shifted on the appellant to prove his innocence;
(iii) That Ld. Trial Court failed to appreciate that PW6 Ajmer Singh failed to identify the appellant during his examination as well as in his cross-
examination by Ld. APP for the state;
(iv) That Ld. Trial Court failed to appreciate that appellant was arrested by the Special Staff in case FIR No. 356/04, PS NFC and he has already been acquitted in that case;
(v) That Ld. Trial Court failed to appreciate that there is no independent public witness to the alleged recovery of robbed mobile phone and the car;
(vi) That Ld. Trial Court failed to appreciate that there are material contradictions in the statement of witnesses.
10. Ld. Counsel for appellant has argued on the line of grounds taken in the instant appeal. On the strength of these grounds/arguments, appellant seeks acquittal.
11. Per contra, Learned Addl. Public Prosecutor for State/respondent has opposed the appeal, stating that prosecution has proved its case against the appellant beyond all reasonable doubts and learned Trial Court has rightly convicted and sentenced him.
12. I have heard the rival contentions and perused the record.
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Digitally
signed by
ANUJ
ANUJ AGRAWAL
AGRAWAL Date:
2021.10.11
13. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
14. It is well settled principle 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.
15. The accused in the present case has been convicted inter alia for offence under section 411 IPC. In Trimbak Vs. The State of Madhya Pradesh, AIR 1954 SC39, the Hon'ble Supreme Court held that in order to bring home the guilt of a person under section 411 IPC the prosecution was required to prove the following facts:
(1) That the stolen property was in the possession of the accused. (2) That some person other than the accused had possession of the stolen property before accused got possession of it, and (3) That the accused has knowledge that the property was stolen property.
16. Now the question which arises for the consideration is that CA No. 204296/2016 Nitin Kumar v. State of NCT of Delhi Page No. 5 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date:
2021.10.11 11:26:36 whether the prosecution has been able to produce such evidence on the record which warrant the conviction of the accused on the touch stone of golden principal of criminal jurisprudence that the guilt of the accused has been proved beyond the reasonable doubt.
EVIDENCE ON RECORD:
17. In support of its case for offence under section 411/482 IPC, prosecution inter alia examined four witnesses i.e. PW3, PW6, PW7 and PW13.
17.1 PW3 Inderjeet Singh is the driver who was working with victim in 'B.S. Travels Company' i.e. owner of the robbed car. He deposed that on 19.07.2004, he alongwith PW6 went to have food near Kalkaji Bus Depot in the company's car; that the vehicle was parked at service lane near Kalkaji Depot; that after having dinner at about 10 pm, they came back and he handed over the keys of vehicle to PW6 and went away to attend nature's call; that when he reached near the spot, he saw PW6 and the car being taken away by three boys.
17.2 PW6 Sh. Ajmer Singh is the victim in the instant case who deposed on line of PW3. He further deposed about being taken at Gurgaon by the three accused (he correctly identified co-accused but could not identify appellant) and being robbed of his mobile phone and car. He correctly identified the car vide photographs Ex.PW2/A and Ex.PW-2/B and his mobile phone as Ex. P1.
17.3 PW7 is SI Vijay Singh who deposed that on 31.07.2004 at about 3.30 pm, a raiding party was formed consisting of himself, HC CA No. 204296/2016 Nitin Kumar v. State of NCT of Delhi Page No. 6 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date:
2021.10.11 11:26:43 Ashok and HC Hawa Singh; that at about 4.10 pm, they stopped a white colour Indica car bearing registration No. DL3CY-7395 at DND Flyover which was being driven by accused Nitin Kumar; that one mobile phone, loaded country made revolver and two live cartridges were recovered from his possession; that the car was stolen from Kalkaji and the number plate of Qualis car was put on Indica car; that the stolen car was seized vide memo Ex. PW-7/A, mobile phone was seized vide seizure memo Ex. PW- 7/B and number place was seized vide seizure memo Ex. PW-7/C. He further deposed that the further investigation was handed over to ASI Paramjeet Singh.
17.4 During cross examination by Ld. defence counsel, PW7 deposed that he requested 5-6 passerby to join the raiding party but none agreed and left the spot without disclosing their names and addresses. He further deposed that no public person was joined at the spot at the time of interrogation or apprehension.
17.5 PW13 HC Rajesh deposed on same line as that of PW7.
18. In the instant case, it is evident from record that prosecution was able to successfully prove that complainant i.e. PW6 was robbed of his mobile phone and car on fateful day. The said robbed phone and car were allegedly recovered from the appellant. Though the case of prosecution against appellant for offence under section 392 IPC failed due to his non-
identification (by PW6), however since the robbed phone/car were allegedly recovered from appellant, therefore it is to be seen whether the case of prosecution pass muster on this count (for offence under section 411 IPC for being in possession of robbed car and phone).
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Digitally
signed by
ANUJ
ANUJ AGRAWAL
AGRAWAL Date:
2021.10.11
11:26:49
19. In my considered opinion, the prosecution has failed to prove the case against the appellant beyond all reasonable doubts under section 411 IPC for the following reasons:-
(i) In the present case, as evident from testimony of PW7 SI Vijay Singh and PW13 HC Rajesh Kumar, the alleged recovery of the robbed car and mobile phone was made from DND Flyover, Noida. A natural corollary of the same is that public persons must have been available at the spot. As per PW7, public witnesses were asked to join the investigation, but none of them agreed. However, there is nothing on record to suggest if any written notice was served upon them to join the proceedings or to face action under section 187 IPC. It is evident that sincere efforts were not made to join independent witnesses in the at the time of alleged recovery. Failure of prosecution to make sincere efforts to join independent witnesses despite their availability causes a serious dent in the story of the prosecution. The reliance is placed on Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Roop Chand Vs. The State of Haryana 199 (1) C.L.R. 69 and Sadhu Singh Vs. State of Punjab 1997 (3) Crime 55.
(ii) The key of the vehicle in question was never produced by prosecution during the trial. The production of the key of the vehicle would have lent the corroboration to the prosecution case. Non production of same for the reasons best known to prosecution leaves a reasonable doubt in the prosecution version. In the Judgment of Munesh Kumar & Ors vs. State, 2011 (124) DRJ 7, the Hon'ble Delhi High Court did not rely upon the recovery of the car from the accused when the keys of the car was not stated to have been recovered from him. I also adopt the same reasoning CA No. 204296/2016 Nitin Kumar v. State of NCT of Delhi Page No. 8 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date:
2021.10.11 11:26:57 and do not rely upon the recovery of the vehicle when the keys has not been proved on the record.
(iii) As per PW7 and PW13, the recovery of vehicle and mobile phone was made from possession of accused when on receipt of secret informer, he organized a raiding party and left for raid at DND Flyover, Noida. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that the hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty shall be entered vide a separate entry and this entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal. In the present case, no departure or the arrival entry has been proved on the record by the prosecution. In absence of the departure and arrival entry of the police officials their presence at the spot cannot be believed. Reference can be made to on Rattan Lal Vs. State 1987 (2) Crimes 29.
20. Therefore, in view of the discussions made herein above and the facts and circumstances of the present case, the defence of accused that he has been falsely implicated looks probable and a cloud of suspicion has arisen in the story of prosecution. In my considered view, prosecution has failed to prove the alleged recovery (of car and mobile phone) from possession of appellant and therefore, he deserves benefit of doubt. Accordingly, accused Nitin Kumar stands acquitted for offence under section 411 IPC. Once the very recovery of robbed vehicle becomes doubtful, the case of prosecution for offence under section 482 IPC (for CA No. 204296/2016 Nitin Kumar v. State of NCT of Delhi Page No. 9 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date:
2021.10.11 11:27:05 using a fake number plate on said vehicle) automatically crumbles and nothing survives thereafter. To summarize, appellant stands acquitted in the instant case for offence under section 411/482 IPC.
21. TCR be sent back along with copy of this judgment. Appeal file be consigned to record room after due compliance.
Digitally signed by ANUJ ANUJ AGRAWAL
AGRAWAL Date:
2021.10.11
11:27:12 +0530
Announced in the open (ANUJ AGRAWAL)
court on 11th October 2021 Additional Sessions Judge-05,
South East, Saket Courts, New Delhi
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