Delhi District Court
State vs . Rohit @ Golu & Anr. on 4 September, 2019
IN THE COURT OF MS. CHETNA SINGH: ACMM02 (CENTRAL),
TIS HAZARI COURTS, DELHI
STATE Vs. Rohit @ Golu & Anr.
New Case No : 296131/16
FIR N0. : 36/14
U/S : 392/394/34 IPC
PS : Gulabi Bagh
Date of Institution : 12.05.2014
Date on which case reserved for Judgment : 04.09.2019
Date of Judgment : 04.09.2019
JUDGMENT
1. FIR No. of the case : 36/14
2. Date of commission of offence : 02.03.2014
3. Name of the accused :1. Rohit @ Golu
S/o Late Sh. Mahesh,
R/o 10682, Gali No. 8, Andha
Mughal, Pratap Nagar, Delhi
110007.
FIR No. 36/14 State Vs Rohit @ Golu & Anr. PS Roop Nagar Page No. 1 of 23
2. Rahul S/o Sh. Rajender, R/o 10648, Gali No. 8, Andha Mughal, Pratap Nagar, Delhi 110007.
4. Offence complained of : 392/394/34 IPC.
5. Plea of accused : Pleaded not guilty.
6. Final order : Acquitted BRIEF FACTS
1. The story of the prosecution is that on 02.03.2014 at 12:40 AM at in land Transport, 18/539, Nai Basti, Kishan Ganj, Khema Katra, Gulabi Bagh, Delhi within the jurisdiction of PS Gulabi Bagh, Delhi, accused Rohit @ Golu alongwith coaccused Rahul in furtherance of their common intention voluntarily restrained the complainant namely Narain Swami and while doing so committed theft of Rs.35,000/, one mobile phone make FIR No. 36/14 State Vs Rohit @ Golu & Anr. PS Roop Nagar Page No. 2 of 23 Samsung, one purse containing DL, photographs and some other documents, belonging to the complainant and also caused him simple injuries on his person and thereby committed offences punishable u/s 392/394/34 IPC.
2. Upon completion of investigation, charge sheet was filed against the accused persons. Accused persons were consequently summoned. Copies of the chargesheet and the annexed documents were supplied to them in compliance of Section 207 Cr. P.C and charge under Section 392/394/34 IPC was framed qua accused Rohit @ Golu and Rahul on 21.06.2014 to which they pleaded not guilty and claimed trial.
APPRECIATION OF EVIDENCE
3. In order to prove its case, the prosecution has examined twelve witnesses in total.
FIR No. 36/14 State Vs Rohit @ Golu & Anr. PS Roop Nagar Page No. 3 of 23
4. PW1 Sh. Narayan Swami deposed that on 02.03.2014 at about 12:30 am, he was giving payment to one loader and after leaving the same was coming back and standing at the gate of inland Transport. Suddenly, two boys came and out of them one caught hold him from his neck and the second started search his pockets and forcefully took out Rs.35,000/ each, one Samsung mobile of black colour having SIM No.9350989804 and one purse containing his DL, photocopy of electricity bill of his house, cash around 150/ and some other documents. Thereafter, both the boys pushed him back and run towards Azad Nagar. Both accused persons correctly identified by witness in the court. He made a call at 100 number and also make noise. Watchman namely Bahadur also chased them and told him that the robbers had entered in Gurudware Wali Gali. Police came to the spot and took him to hospital where he was provided medical aid. His statement was recorded which is Ex.PW1/A bearing his signatures at point A. At his instance, IO prepared the site plan which is Ex.PW1/B. This witness was cross examined by the Ld. Defence counsel FIR No. 36/14 State Vs Rohit @ Golu & Anr. PS Roop Nagar Page No. 4 of 23 however the same is not repeated herein for the sake of brevity.
5. PW2 Sri Nathu Swami deposed that persons namely Narayan Sawami has been working in their company for the last 8 to 10 years. His company had given SIM Card bearing No. 9350989804 to Narayan Swami for official use and on 02.03.2014, Narayan had told him that two boys had robbed him and took away his mobile phone and cash around Rs. 35,000/ each.
This witness was cross examined by the Ld. Defence counsel however the same is not repeated herein for the sake of brevity.
6. PW3 Sh. Narender Solanki deposed that on 13.03.2014, one person made call to PCR at 100 number at about 2:00 PM. His PCO phone number is 9266601754.
This witness was not cross examined by the accused persons despite opportunity being given.
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7. PW4 HC Inderjeet Singh deposed that on 02.03.2014, he was posted at PS Gulabi Bagh as HC and working as Duty officer from 12:00 midnight to 8:00 AM and at around 2:15 AM, a rukka was brought by HC Dev Dutt sent by SI Satender, on the basis of which he recorded the FIR No. 36/14. The copy of FIR is Ex.PW4/A (original seen and returned) which bears his signatures at point A. He also made an endorsement on the rukka which is Ex.PW4/B, bearing his signatures at point A. This witness was not cross examined by the accused persons despite opportunity being given.
8. PW5 HC Ramesh deposed that on 02.03.2014, he was posted as Constable at PP Andha Mugal of PS Gulabi Bagh, Delhi and was working as DD writer from 8:00 PM to 8:00 AM and at about 12:55 AM, he had received an information through wireless set regarding theft of Rs.35,000/ at Andha Mugal, Khema Katra in front of Inland Transport near Pratap FIR No. 36/14 State Vs Rohit @ Golu & Anr. PS Roop Nagar Page No. 6 of 23 Nagar Metro Station. He recorded the said information at serial No. 3PP dated 02.03.2014. He informed telephonically to HC Devdutt and Ct. Pramod about the said information. The said DD entry was handed over to SI Satender for further action The DD entry is Ex.PW5/A, bearing his signatures at point A. This witness was not cross examined by the accused persons despite opportunity being given.
9. PW6 W/Ct. Prabha deposed that on 13.03.2014, she was posted as constable at PS Gulabi Bagh. On that day, she was posted as DD writer at PP Andha Mugal from 8:00 AM to 4:00 PM. On that day, she received a PCR call at 2:20 PM regarding a quarrel took place at Pratap Nagar near Pratibha Vikas Vidyalya, same was registered in daily dairy register vide DD No.18PP dated 13.03.2014 and the same was handed over to SI Satender alongwith Ct. Anil and Ct. Hemant for further action which is Ex.PW6/A, bearing her signatures at point A. FIR No. 36/14 State Vs Rohit @ Golu & Anr. PS Roop Nagar Page No. 7 of 23 This witness was not cross examined by the accused persons despite opportunity being given.
10. PW7 Ct. Pramod deposed that on 02.03.2014, he was posted as Constable at PP Andha Mugal, PS Gulabi Bagh. On that at about 12:55 AM, he received a call regarding robbery. He alongwith HC Dev Dutt and SI Satender reached at Inland Transport 18/539, Nai Basti, Kishanganj, Delhi. they saw complainant Narain Swami was present at the spot and he narrated the incident that one accused held his neck from back side and another accused gave blows and fists and took out Rs.35,000/ from the pocket of his pant, one mobile phone and one black colour purse containing money Rs.150/ and other important documents from the pocket of complainant. Thereafter, IO/SI Satender recorded the statement of complainant. IO gave instructions to him to took the complainant to the Hindu Rao Hospital for medical examination. Complainant was medically examined in Hindu Rao Hospital and he also received the MLC of complainant and same is FIR No. 36/14 State Vs Rohit @ Golu & Anr. PS Roop Nagar Page No. 8 of 23 Ex.PW7/A. He alongwith complainant came back at the spot. He handed over the above said MLC to SI Satender. IO also recorded his statement at police post Andha Mugal.
This witness was cross examined by the Ld. Defence counsel however the same is not repeated herein for the sake of brevity.
11. PW8 HC Hemant deposed that on 13.03.2014, he was posted as constable at PS Gulabi Bagh. On the same date his duty hours were from 8:00 AM to 8:00 PM. He alongwith Ct. Anil were on patrolling duty at Andha Mugal and at about 2:20 PM, IO/SI Satender called Ct. Anil regarding quarrel near Pratap Nagar Metro Station. IO/SI Satender gave them direction, on which he alongwith Ct. Anil left for Parthibha Vikas Vidyalaya near Pratap Nagar Metro Station they saw that accused Rahul and Rohit @ Golu (both accused persons correctly identified by witness in the court) were quarreling on dispute of money and in the meanwhile IO/SI Satender also came at the spot and on interrogation both accused persons FIR No. 36/14 State Vs Rohit @ Golu & Anr. PS Roop Nagar Page No. 9 of 23 disclosed that they have committed theft of one mobile phone, purse and Rs.20,000/ from one person near metro parking. Accused persons further disclosed that accused Rikki S/o Balbir was also involved in above said theft. He alongwith Ct. Anil, IO/SI Satender and both accused persons left in search of accused Rikki but he was not found. Thereafter accused Rohit @ Golu was arrested vide arrest memo Ex.PW8/A and personal search of accused Rahul was conducted vide memo Ex.PW8/B, both bearing my signatures at point A. Disclosure statement of accused Rohit @ Golu and Rahul was recorded by IO vide disclosure memos Ex.PW8/C and Ex.PW8/D. IO had also prepared pointing out memo at the instance of accused Rahul Ex.PW8/E, bearing his signatures at point A. Body inspection of accused rahul was done by IO vide memo Ex.PW8/F, bearing his signatures at point A. IO recorded his statement.
This witness was cross examined by the LAC however the same is not repeated herein for the sake of brevity.
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12. PW9 ASI Dev Dutt deposed that on 02.03.2013, he was posted as Head Constable at PS Gulabi Bagh, PP Andha Mugal and at about 12:55 AM, he received DD No.3PP regarding robbery at Inland Transport, Nai Basti, Kishan Ganj. He alognwith SI Statender, Ct. Pramod left for the spot and IO recorded statement of complainant. Ct. Pramod and complainant left for the Hindu Rao Hospital and IO got the FIR registered. Ct. Pramod and complainant came back at the spot from Hindu Rao Hospital and Ct. Pramod handed over MLC of the complainant to IO. IO prepared site plan at the instance of the complainant. IO recorded his statement. They also searched accused persons but same were not found.
This witness was cross examined by the LAC however the same is not repeated herein for the sake of brevity.
13. PW10 HC Anil Kumar deposed that on 13.03.2014, he was posted as constable at PS Gulabi Bagh, PP Andha Mugal from 8:00 AM to 8:00 PM. On that day at about 2:20 AM, IO/SI Satender received call FIR No. 36/14 State Vs Rohit @ Golu & Anr. PS Roop Nagar Page No. 11 of 23 regarding quarrel near Partibha Vikas Vidyalya, Pratap Nagar Metro Station. IO/SI Satender gave them direction on which he alongwith Ct. Hemant left for Partibha Vikas Vidyalaya near Pratap Nagar Metro Station. They saw accused persons namely Rahul and Rohit @ Golu (correctly identified by witnesses in the court) were quarreling on dispute of money. On enquiry they disclosed that they had committed robbery of one mobile phone, purse and cash from one person near transport metro parking. Thereafter accused Rohit @ Golu was arrested vide memo Ex.PW10/A and his personal search was conducted vide memo Ex.PW10/B, both bearing his signatures at point A. Body inspection memo of accused Rohit @ Golu was also prepared vide memo Ex.PW10/C, bearing his signatures at point A. Accused persons were medically examined at Hindu Rao Hospital and IO recorded their disclosure statements. IO prepared pointing out memo at the instance of accused Rohit @ Golu Ex.PW10/D, bearing his signatures at point A. IO also prepared pointing out memo at instance of accused Rahul. He alongwith Ct. Hemant, IO/SI Satender and both accused persons left in search of accused Rikki but FIR No. 36/14 State Vs Rohit @ Golu & Anr. PS Roop Nagar Page No. 12 of 23 all in vain. IO recorded his statement.
This witness was cross examined by the LAC however the same is not repeated herein for the sake of brevity.
14. PW11 SI Satender deposed that on 02.03.2014, he was posted as SI with PS Gulabi Bagh and as I/C, PP Andha Mugal. On that day, he received DD No.3PP regarding robbery at inland transport near Pratap Nagar Metro Station. He alongwith HC Dev Dutt and Ct. Pramod reached the spot and met with complainant Sh. Narayan Swami and recorded his statement. He endorsed the same at point B. He prepared rukka which is Ex.PW11/A, bearing his signatures at point A and got the FIR registered. On 13.03.2014, he was entrusted DD No.18PP regarding quarrel at Andha Mugal. he alognwith Ct. Anil and Ct. Hemant at the spot and met with accused Rohit @ Golu (correctly identified by the witness in the court) and accused Rahul (correctly identified by the witness in the court). Upon enquiry, he came to know that they were fighting for the distribution of money, however, they FIR No. 36/14 State Vs Rohit @ Golu & Anr. PS Roop Nagar Page No. 13 of 23 were not having any money with them. Upon asking, they admitted their involvement in the present case. He arrested both the accused persons and conducted their personal search. Disclosure statements of both the accused persons were also recorded. Both the accused persons took them to spot and he prepared pointing out memos. Thereafter they returned to PS and both the accused persons were put behind bars after their medical examination. On next day, TIP of both the accused persons were conducted. During investigation, he collected the copies of TIP and placed the same on record. He recorded statement of witnesses. Thereafter, he handed over the case file to MHCM as he was transferred from PS Gulabi Bagh.
This witness was cross examined by the LAC however the same is not repeated herein for the sake of brevity.
15. PW12 SI Prem Kumar deposed On 28.04.2014, he was posted as SI/Incharge of PP Andha Mugal, PS Gulabi Bagh. On that day the present case was marked to him for further investigation. He has gone through the FIR No. 36/14 State Vs Rohit @ Golu & Anr. PS Roop Nagar Page No. 14 of 23 file and came to know that investigation was completed by previous IO/SI Satender. Accordingly he prepared the chargesheet and filed before the Hon'ble Court.
This witness was cross examined by the LAC however the same is not repeated herein for the sake of brevity.
16. Upon completion of Prosecution Evidence, statement of accused persons U/s 313 Cr. P.C was recorded on 04.09.2019 wherein accused persons have pleaded innocence. They have opted not to lead any defence evidence.
17. Final arguments were advanced by Ld. APP for the State as well as LAC for accused persons.
18. I have heard the rival submissions and carefully perused the record.
FIR No. 36/14 State Vs Rohit @ Golu & Anr. PS Roop Nagar Page No. 15 of 23 REASONS FOR DECISION
19. Before appreciating the evidence as stated above in brief, it is necessary to state the law/ essential ingredients of of Section 392 IPC which are as follows:
(i). when any person in order to the committing of theft or in committing theft, or in carrying away or attempting to carry away property obtained by theft.
(ii). voluntarily causes or attempts to cause to any person death or hurt or wrongfully restraint.
(iii). by fear of instant death or of instant hurt or of instant wrongful restraint.
20. It has been observed that Harish Chandra Vs. State of UP AIR 1976 SC 1430 that: FIR No. 36/14 State Vs Rohit @ Golu & Anr. PS Roop Nagar Page No. 16 of 23 "Robbery: the offence of robbery is defined in Section 390 of IPC. The robbery is punishable u/s 392 of IPC. When force is used to enable another to carry away the booty, it amounts to robbery."
21. Essential ingredients of Section 394 IPC which are as follows :
(i). that the accused, or some one jointly concerned with him, committed or attempted to commit robbery,
(ii). that the accused, or such other person, voluntarily caused hurt in doing so.
22. Essential ingredients of Section 34 IPC are as follows:
(1) That there must be a criminal act;
(2) The act must have been done by several persons in furtherance of their common intention;
23. In the present matter prosecution was to prove that both the FIR No. 36/14 State Vs Rohit @ Golu & Anr. PS Roop Nagar Page No. 17 of 23 accused persons in furtherance of their common intention voluntarily restrained the complainant and committed theft of Rs. 35,000/, Samsung mobile phone, purse and other documents belonging to the complainant and also caused simple injuries upon the complainant. In this regard prosecution has examined 12 witnesses in total. MLC of the injured and the TIP proceedings of both the accused persons being admitted by them during recording of proceedings under Section 294 of Cr. PC.
24. In the present matter the prosecution has examined the complainant who stated that while he was working at around 12:30 AM on 02.03.2014 at the gate of Inland Transport and suddenly two boys came and caught hold of his neck and second one started searching his pocket forcefully and took out Rs. 35,000/, Samsung mobile and purse containing DL, photocopy of electricity bill of his house, cash around Rs. 150/ etc. thereafter ran towards Azad Nagar. He identified both the accused persons in the court and also identified them during TIP proceedings which were FIR No. 36/14 State Vs Rohit @ Golu & Anr. PS Roop Nagar Page No. 18 of 23 admitted by the accused persons as Ex. A1.
25. In order to support the testimony of this witness, prosecution examined PW2 Sh. Nathu Swami working in Inland Transport who merely stated that the complainant was working with him for past 810 years and given SIM Card bearing No. 9350989804 for his official use and on 02.03.2014 the complainant told him that he was robbed by two boys and took away his mobile phone and cash around Rs. 35,000/.
26. Without repeating the testimonies of witnesses examined by the prosecution in the present matter, it is necessary to point out glaring loophole in the story of the prosecution. It is a matter of record that the incident took place on 02.03.2014 wherein both the accused persons were arrested on 13.03.2014 by Ct. Anil who was on patrolling with HC Hemant and IO/SI Satender. The prosecution alleges that both the accused persons were fighting for division of money which were allegedly robbed by them around 10 days back. Surprisingly, the money over which they were fighting FIR No. 36/14 State Vs Rohit @ Golu & Anr. PS Roop Nagar Page No. 19 of 23 were never recovered from them. Neither mobile phone, purse or the other documents which are robbed by the accused persons were recovered from them. Accused persons were arrested on the basis of their disclosure statement and thereafter their TIP was conducted. During the said TIP, the complainant identified both the accused persons. Here the testimony of the complainant also seems improbable. Without doubting that the incident took place with the complainant, this court is of the opinion that the complainant could not have identified the two boys who suddenly came from behind and caught hold of his neck and took away his purse etc. and ran away. It is a matter of record that the time of incident was past midnight at about 12:30 AM. It is a matter of record that no other labourer/employees of Inland Transport were present at the time of the incident. It is a matter of record that apart from the complainant no other person saw the accused persons running away with the robbed articles/cash.
27. Considering the entire story of the prosecution it is very FIR No. 36/14 State Vs Rohit @ Golu & Anr. PS Roop Nagar Page No. 20 of 23 improbable that the complainant would have correctly identified two accused persons after he only saw them for about one minute at about 12:30 AM in the dark night. The complainant in his cross examination admitted that the some security guards were posted at the gate and around 3035 persons were working in the company. However, at the time of the incident he stated that he was alone at the spot and no other public persons were called at the time of the incident by him. This seems improbable behaviour when the same is compared to the behaviour of a reasonable person who has been robbed past midnight. It remains unexplained as to why the complainant did not mention or called any of the other fellow employees at the time of the incident. Even otherwise the complainant stolen/robbed articles including purse, mobile etc. and the cash were never recovered from the accused persons. They were merely arrested on the basis of the disclosure statement after about 10 days of the incident. There is nothing on record to suggest the involvement of both the accused persons in the present incident apart from their identification by the complainant during TIP FIR No. 36/14 State Vs Rohit @ Golu & Anr. PS Roop Nagar Page No. 21 of 23 proceedings. There is nothing on record to connect the accused persons to the robbery as alleged by the prosecution.
28. 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.
29. It has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 the Hon'ble Punjab & Haryana High Court : "In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. 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 FIR No. 36/14 State Vs Rohit @ Golu & Anr. PS Roop Nagar Page No. 22 of 23 necessarily has to go to the accused."
30. As a cumulative effect of the above said discussion, a reasonable shadow of doubt is cast upon the prosecution version and thus the accused Rohit @ Golu and Rahul are entitled to the benefit of doubt. Thus accused Rohit @ Golu and Rahul are acquitted for the charges u/s 392/394/34 IPC levelled against them.
31. Ordered accordingly.
Digitally signed by
CHETNA CHETNA SINGH
Announced in the open court SINGH Date: 2019.09.04
16:22:00 +0530
on 04.09.2019 (Chetna Singh)
Addl. Chief Metropolitan Magistrate02
Central/THC/Delhi/04.09.2019
FIR No. 36/14 State Vs Rohit @ Golu & Anr. PS Roop Nagar Page No. 23 of 23