Delhi District Court
State vs . (1) Rinku on 19 May, 2015
IN THE COURT OF SH. RAKESH KUMAR II
ADDL. SESSIONS JUDGE03,(WEST)DELHI
Unique Id. No. 02401R0101842014
SC No. 107/3/14
FIR No. 43/2014
U/S 392/394/397/411/34 IPC & 25/27 Arms Act
PS Ranhola
State vs. (1) Rinku
(2) Rajeev Kumar
(3) Neeraj Sharma
JUDGEMENT
1. Sl. No. of the case : 107/3/14
2. Date of Committal to Sessions : 20.03.2014
3. Name of the complainant : Nandu Rathore
4. Date of commission of offence : 18.01.2014
5. Name and Parentage of accused : (1) Rinku S/o Ramji, R/o H.
No. B99, Gali No. 9, Vikas
Enclave, Vikas Nagar, Delhi.
(2) Rajeev Kumar, S/o Sh.
Prem Chand R/o H. No. A63,
Deepak Vihar, Vikas Nagar,
Delhi.
(3) Neeraj Sharma, S/o Sh.
Kamal Narayan R/o H. No.
A197, Deepak Vihar,
Vikas Nagar, Delhi.
6. Offence complained of : 392/394/34 IPC &
25/27 Arms Act
7. Offence charged : 394/397/411/34 IPC &
25/27Arms Act.
8. Plea of guilt : Pleaded Not Guilty
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9. Final order : Acquitted
10. Date on which order reserved : 15.05.2015
11. Date on which order announced : 19.05.2015
BRIEF REASONS FOR DECISION :
1. Case of the prosecution as per the charge sheet is that a complaint was made by Nandu Rathore stating that on 18.01.2014, he received salary of Rs. 18,600/ from his employer namely Shravan Kumar. Out of Rs.18,600/ , complainant gave Rs. 2,300/ to his friend Bittu and some of the money was spent by him and he was left with Rs. 15,000/. At around 09.15 pm, he was going towards his house and when he reached at Gali No. 6, four boys came there and they surrounded him and one of the boy namely Neeraj Sharma who is the bad element of the area, came from the back and caught hold his neck and put the knife on his neck. One small, fair boy caught hold both his hands and third boy with good built took out Rs. 15,000/ from the pocket of his jeans and the fourth boy took out his mobile phone bearing no. 9953068455 and after pushing him, they started running. Complainant caught one of the culprits namely Ravi Kumar and he made a complaint to the police for taking necessary action.
2. DD No. 38A dated 18.01.2014 was received by SI Puran Mal and he alongwith Ct. Vikas reached at Gali No 6, behind Gurudwara, Deepak Vihar where Nandu Rathore was present with accused Ravi and accused Ravi was taken to police station and case under section 392/394/34 IPC and 25/27/54/59 Arms Act was registered. Accused Ravi was arrested and on the pointing out of complainant FIR NO. 43/2014 State Vs. Rinku etc. Page 2/11 Nandu Rathore, site plan of the spot was prepared. Accused persons were searched and accused Rajeev Kumar and Rinku were found at their houses and on the pointing of complainant, they were arrested and Rs. 6,000/ were recovered from the possession of accused Rajeev Kumar and Rs. 3,000/ and Mobile were recovered from the possession of accused Rinku. Their disclosure statements were recorded. Accused Neeraj Sharma was also apprehended from his house and at his instance, one buttondar knife and Rs. 6,000/ were recovered and his disclosure statement was also recorded. Ravi Kumar was juvenile and he was sent to juvenile court vide orders passed by Sh. Rajinder Kumar Sharma.
3. After conclusion of investigation, charge sheet under section 392/394/397/411/34 IPC and 25/27 Arms Act was filed. After compliance of 207 Cr. PC, case was committed to the sessions court. During the course of trial, accused was charged for commission of offence punishable under section 394/397/411/34 IPC and 25/27 Arms Act on 21.07.2014 , to which, accused pleaded not guilty and claimed trial.
4. To prove its case, prosecution cited 09 witnesses but 07 witnesses were examined. Complainant namely Sh. Nandu Rathore was examined as PW3 who turned hostile as he did not support the case of the prosecution and relevant portion of examination and crossexamination is as under:
"I am a tailor by profession and used to work at Deepak Vihar in Shop. On 18.01.2014, at around 09.00 PM, I left the shop with my salary i.e. Rs. 18,500/. I had taken a loan from my friend. I repaid that loan and I was left with Rs.15,000/ and I kept Rs. 15,000/ in my front side pocket FIR NO. 43/2014 State Vs. Rinku etc. Page 3/11 of worn jeans pant. I reached Gali No. 6 behind Gurudwara. It was an open area. Fourfive boys caught hold me. One of them put a knife on my neck and other boy took out Rs. 15,000/ from my pocket. My one chinese mobile was also taken out by the assailants. My mobile had the sim No. 9953068455. I was let of by the accused persons and while they were running away, one of the accused was apprehended by me with the help of public persons present near the spot. Somebody from the nearby shop also called the police. Police came to the spot and accused was produced to the police by the public persons. Whatever I had told today before the court, I also told these facts to the police also and my statement Ex.PW 3/A was recorded which bears my signature at pt. A. One site plan was prepared by the police in my presence same is Ex. PW 3/B which bears my signature at pt. A. Later on I was informed by the police that cash amount of Rs. 13,000/ and mobile phone were recovered from the accused. I took both the articles on Superdari. Superdarinama is Ex. PW 3/C which bears my signature at pt. A. Today, I have not brought the mobile I will produced the same on the next date of hearing.
I have brought the mobile phone which was robbed in the incident and was lateron recovered by the police and taken by me on Superdari. The mobile phone is Ex. P1. I cannot produce the currency notes which were taken by me on superdari as I have already spent the same. However, the photocopy of the currency notes were placed on file before giving the currency notes to me on superdari. I identify the currency notes which were robbed from me. The currency notes are collectively exhibited as Ex. P2 (running in five pages).
None of the robbers is present in the court today. The accused persons present in the court are not those persons who robbed me".
This witness was declare hostile and was cross examined by Ld. APP and relevant portion of cross examination is as under:
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"I had not stated in my statement Ex. PW 3/A given to the police that one of the robbers who was involved in the incident was Neeraj Sharma to whom I knew even before the incident as he is a bad element of the area. (Confronted with statement Ex. PW 3/A, wherein it is so recorded). I had also not stated to the police in my statement Ex. PW 3/A that the said Neeraj Sharma caught hold my neck and he was also having one knife with him which he put on my neck at the time of robbery. (Confronted with statement Ex. PW 3/A, wherein it is so recorded.) I had also not stated to the police that when Neeraj Sharma caught hold my neck another person whose name was lateron revealed as Ravi Kumar caught hold my both hands and the another person namely Rajeev took out Rs. 15,000/ from the pocket of my pant. (Confronted with statement Ex. PW 3/A, wherein it is so recorded.) I had also not stated to the police in my statement Ex. PW 3/A that forth person involved in the incident was Rinku and he took out my mobile phone from the pocket of my shirt. (Confronted with statement Ex. PW 3/A, wherein it is so recorded.) I had not stated in the Ex. PW 3/A that when I tried to caught accused Ravi Kumar he gave teeth bite on my finger due to which I received injury. (Confronted with statement Ex. PW 3/A, wherein it is so recorded.) It is further incorrect to suggest that police also recorded my supplementary statement on the same day which is Mark X, wherein I had stated that Ravi Kumar was apprehended at the spot at my instance and further at the instance of Ravi Kumar, rest of the accused namely Neeraj, Rajeev and Rinku were arrested. (Confronted with statement Mark X, wherein it is so recorded.) It is further incorrect to suggest that in my statement Mark X, I had stated to the police that the accused Neeraj, Ravi Kumar, Rajeev and Rinku were arrested in my presence and further their personal search was conducted and from the possession of accused Neeraj, the knife used in the incident as well as Rs. 4,000/ cash, part and parcel of the robbed money was recovered. Similarly, robbed mobile and Rs. 3,000/ were recovered from Rinku. Rs. 6,000/ were recovered from Rajeev Kumar. It is incorrect to suggest that the accused present in the court today namely Neeraj, Rajeev and Rinku are the same FIR NO. 43/2014 State Vs. Rinku etc. Page 5/11 persons/accused who were involved in the incident of robbery alongwith that JCL Ravi Kumar (facing trial in JJB). It is incorrect to suggest that I have settled the matter with the accused persons and therefore, I am intentionally not naming/identifying the accused persons as persons who committed robbery with me or involved in the incident. It is correct that the site plan Ex. PW 3/B, all the seizure memos, pointing out memos, arrest memos of all the accused bear my signature at pt. A. It is incorrect to suggest that I am deliberately not identifying the accused persons or deposing falsely in this regard".
Ld. Defence Counsels did not cross examined this witness.
5. As the complainant was hostile and had resiled from his earlier statement, the Addl. Public Prosecutor cross examined him but nothing fruitful came out for the prosecution as the complainant did not depose anything against the accused persons. He denied all the suggestions given by Ld. APP.
6. The complainant namely Nandu Rathore was examined as PW 3 who has failed to identify all the three accused persons and deposed that none of the robbers is present in the court today and the accused persons present in the court are not those persons who robbed him. He stated in the cross examination conducted by Ld. APP that he had not stated in his statement Ex.PW 3/A that one of the robbers who was involved in the incident was Neeraj Sharma whom he knew before the incident as he was the bad element of the area. He denied the suggestion that accused Neeraj, Ravi, Rajeev and Rinku were arrested in his presence or their personal search was conducted and from the possession of accused Neeraj, knife used in the incident as well as Rs. 4,000/ cash, part and parcel of the robbed FIR NO. 43/2014 State Vs. Rinku etc. Page 6/11 money, was recovered. He deposed that he had not stated to the police that Neeraj Sharma caught hold his neck, Ravi Kumar caught hold his both the hands and Rajeev Kumar took out Rs. 15,000/ from his pocket. He also denied that fourth accused Rinku took out his mobile phone from his pocket.
7. PW 1 ASI Rambir Singh was duty officer on 19.01.2011 who registered the formal FIR Ex. PW 1/A and his endorsement on rukka is Ex.PW 1/B and certificate u/s 65 B of Evidence Act is Ex. PW 1/C.
8. PW 2 Dr. Mahipal Singh, CMO, SGM Hospital deposed that on 19.01.2014, he was posted as CMO in the above mentioned hospital and one patient namely Nandu Rathore was brought to the hospital by the police. He was examined and his MLC Ex.PW 2/A was prepared by Dr. Anand and PW 2 identified his signatures on the MLC.
9. PW 4 SI Praveen Kumar deposed that on 01.02.2014, investigation of this case was marked to him and he had collected the age proof of juvenile Ravi Kumar and thereafter, prepared the separate charge sheet against Ravi Kumar.
10.PW 5 ASI Omkar Singh stated that on 18.01.2014, he was on duty as Duty Officer and at about 10.15 pm, he received a call from control room regarding apprehending a thief and he made a DD entry in roznamcha register Ex. PW 5/A and the DD entry was handed over to SI Puran Mal for necessary action.
11. PW 6 Ct. Vikas Kumar deposed that on 18.01.2014, he was on emergency duty FIR NO. 43/2014 State Vs. Rinku etc. Page 7/11 alongwith SI Puran Mal and at about 10.15 am, SI Puran Mal received an information through phone about the apprehension of a thief and thereafter, he alongwith SI Puran Mal reached at the spot where he met with complainant Nandu Rathore. One of the culprits namely Ravi was in the custody of public persons on the spot and he was taken to police station. He further deposed that all the other accused were arrested, robbed amount and phone were recovered and he prepared the seizure memo Ex. PW 6/A and Ex. PW 6/B. He stated that accused Raju and Rinku were arrested and personally searched vide memos Ex. PW 6/C1 to Ex.PW 6/C4. He stated that sketch of knife Ex. PW 6/E was prepared and accused persons pointed out the place of occurrence vide Ex. PW 6/E1 to Ex. PW 6/E3 and the arrest memo and personal search memo of accused Neeraj is Ex. PW 6/F and Ex. PW 6/G respectively. He deposed that the disclosure statements of accused persons were recorded by the IO in his presence vide disclosure statements Ex. PW 6/H1 to Ex. PW 6/H3 and knife is exhibited as Ex. P3.
12.PW 7 SI Puran Mal deposed that on 18.01.2014, DD No. 38A was marked to him for investigation and he alongwith Ct. Vikas went at the spot, met with complainant and recorded his statement Ex. PW 3/A. He stated that on the basis of complaint, he prepared rukka Ex. PW 7/A and an FIR Ex. PW 1/A was registered. He deposed that accused persons were arrested, robbed amount was recovered and seized.
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13.PW 7 who is the IO of the case, was cross examined and he admitted in the cross examination that many public persons were present at the spot and he did not make any public person, a witness. He also admitted that no notice was given to the public person who refused to join the investigation and he also did not record the names and addresses of those public persons who refused to join the investigation. He stated in the cross examination that both juvenile Ravi and complainant were injured but they were not medically examined at that time and they were examined after the conclusion of the investigation. He also admitted that juvenile Ravi had not disclosed the names and addresses of other accused persons in the disclosure statement mark A.
14. Statements of accused persons u/s 313 Cr.PC were recorded vide which accused persons claimed to be innocent.
15.The most important and relevant witness is complainant Sh. Nandu Rathore who did not support the case of the prosecution and became hostile and resiled from his earlier statement. Ld. Addl. PP crossexamined this witness but in the cross examination, he did not support the case of the prosecution.
16.I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and precedents on the point.
17. In the light of the aforesaid nature of deposition of complainant who is the material witnesses, I am of the considered view that their deposition cannot be FIR NO. 43/2014 State Vs. Rinku etc. Page 9/11 treated as trustworthy and reliable. Reference can be made to the judgment titled as Suraj Mal vs. The State (Delhi Administration), AIR 1979, SC, 1408 wherein the Hon'ble Supreme Court has observed that:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness;"
18. Similar view was also taken in the judgment reported as Madari @Dhiraj and others vs. State of Chattisgarh, 2004 (1) CCC 487.
19. Consequently no inference can be drawn that the accused persons have caused injuries on complainant Nandu Rathore with the weapon knife and there is no material on record to suggest that Nandu Rathore was ever attacked by accused persons. No case is made out against the accused persons as there is no incriminating evidence against them. The prosecution has failed to prove that the money which was recovered from the accused persons was the same which was robbed from the complainant. The complainant had not given any specific description of the money which was robbed.
20.Consequently, no inference can be drawn that the accused persons are guilty of charge for the offence punishable under Section 394/397/411/34 IPC and 25/27 Arms Act. There is no material on record that on 18.01.2014 at about 09.15 p.m. FIR NO. 43/2014 State Vs. Rinku etc. Page 10/11 at Gali No. 6, behind Gurudwara, Deepak Vihar, Delhi, the accused persons robbed and caused injuries on the person of Nandu Rathore.
21. Therefore, in view of the above discussion the court is satisfied that the prosecution has failed to prove the case against the accused Rinku, Rajeev Kumar and Neeraj Sharma for the offence under Section 394/397/411/34 IPC and 25/27 Arms Act.
22.The accused Rinku, Rajeev Kumar and Neeraj Sharma are hereby acquitted of all the charge for the offence under section 394/397/411/34 IPC and 25/27Arms Act.
23.After the completion of formalities and expiry of the period of limitation for appeal, the file be consigned to record room.
Announced in the open court today i.e. 19.05.2015.
(Rakesh KumarII) Additional Sessions Judge03, West District, Delhi.
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