Delhi District Court
State vs Sonu on 12 April, 2022
CNR no. DLCT020106412021
IN THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE-07, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR no. DLCT020106412021
CIS No. 5723/2021
State Vs Sonu
FIR No. 108/21
PS. Kashmere Gate
U/s. 392/411/34 IPC
JUDGMENT
1) The date of commission of offence : 08.03.2021
2) The name of the complainant : Krishna Jha S/o Roop Narayan
3) The name & parentage of accused : Sonu S/o Harish Chander
4) Offence complained of : 392/411/34 IPC
5) The plea of accused : Pleaded not guilty.
6) Final order : Acquitted.
7) The date of such order : 12.04.2022
Date of Institution : 12.05.2021
Judgment reserved on : 12.04.2022
Judgment announced on : 12.04.2022
Digitally
signed by
KAPIL KAPIL KUMAR
Date:
KUMAR 2022.04.12
17:14:47
+0530
State Vs. Sonu; CIS No. 5723/2021; FIR No. 108/21; PS Kashmere Gate; U/s. 392/411/34 IPC 1/9
CNR no. DLCT020106412021
THE BRIEF REASONS FOR THE JUDGMENT:
1) The case of prosecution against the accused is that on
08.03.2021 at about 8:20 PM at footpath ring road, near IN Gate ISBT Kashmere Gate, Delhi he along with his associate Shivam (released for lack of evidence) in furtherance of their common intention robbed the complainant Krishan Jha of his mobile phone make Vivo and brown wallet containing Rs 2700/- and some documents of the complainant. Alternatively, it is the case of the prosecution that on 02.04.2021 at jhuggi outside ranbasera he got recovered a brown colour wallet of the complainant containing Rs 200/- cash and the photocopies of the Adhar Card and driving license of the complainant, which he received or retained knowingly or having reason to be believe to be the stolen property.
2) After completion of investigation, charge sheet was filed against the accused. In compliance of Sec. 207 Cr.PC, documents supplied to the accused. Arguments on point of charge were heard. Vide order dated 01.12.2021, a charge u/s. 392/411/34 IPC was framed upon the accused, to which he pleaded not guilty and claimed trial.
3) In support of its case, prosecution has examined three witnesses. Accused not disputed the registration of the FIR; TIP proceedings; lodging of DD no. 87A dated 08.03.2021; DD no. 53A dated 12.04.2021 and the arrest proceedings carried out in e- FIR no. 377/21 PS Kashmere Gate by ASI Anil, for which the separate statement of the accused U/s 294 Cr.PC was recorded.
4) After the conclusion of prosecution evidence, the statement of accused was recorded. Accused denied all the allegations and State Vs. Sonu; CIS No. 5723/2021; FIR No. 108/21; PS Kashmere Gate; U/s. 392/411/34 IPC 2/9 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2022.04.12 17:14:54 +0530 CNR no. DLCT020106412021 opted not to lead defence evidence.
5) I have heard the arguments of Ld. APP for State and Ld. LAC for accused. I have also perused the record carefully.
6) It is the cardinal principle of criminal justice delivery system that the prosecution has to prove the guilt of the accused beyond reasonable doubts. No matter how weak the defence of accused is but the golden rule of the criminal jurisprudence is that the case of prosecution has to stand on its own legs.
7) The crucial witness of the present case is the complainant Krishan Jha who was examined as PW1 by the prosecution. The complainant was alone when he was robbed and thus his testimony is to be appreciated carefully. It is pertinent to mention here that there was no CCTV footage or other scientific evidence in the present case.
8) The complainant stepped into the witness box as PW1 and deposed that on 08.03.2021 at about 8:20 PM when he was walking on footpath he was choked by neck by two unknown persons and was robbed of his mobile phone make Vivo and wallet containing Rs 2700/- and some documents. He deposed that during the robbery he managed to see the persons who robbed him. He deposed that since his mobile phone was robbed he borrowed a mobile phone from a passer-by and made a call at 100 number and PCR came at the spot. He deposed that later on police officials of the concerned police station also reached at the spot and recorded his statement which is Ex.PW1/A. He deposed that he along with police officials made efforts to trace out the accused persons but no clue came up qua the accused persons. He deposed that at his instance Ex.PW1/B was prepared.
State Vs. Sonu; CIS No. 5723/2021; FIR No. 108/21; PS Kashmere Gate; U/s. 392/411/34 IPC 3/9 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.04.12 17:14:59 +0530 CNR no. DLCT020106412021
9) The complainant deposed that he was asked to join the TIP proceedings on 24.03.2021 but he failed to identify the accused Sonu. When the case property containing a wallet, Adhar Card, Rs 200 cash and a copy of driving license was produced in the court, the same was identified by the complainant. The complainant failed to identify the accused in the court.
10) Perusal of examination-in-chief of complainant reveals that he deposed on the lines of the complaint but he failed to identify the accused Sonu in the court. He was cross-examined by Ld. APP for the State on the aspect of identification of the accused but of no avail. During the cross-examination a positive suggestion was given to the witness that accused Sonu is the person who robbed him but the same was denied by the complainant specifically. He deposed that accused Sonu is not the one who committed offence against him. He denied the suggestion that he intentionally not identifying the accused or he has been won over by the accused.
11) Thereafter the complainant was cross-examination by Ld. Defence Counsel in which he admitted the suggestion that the accused (Sonu) in attendance of the court is not the one who robbed his articles. He affirmed that he never visited the police station after the registration of the FIR.
12) Thus the complainant failed to identify the accused in the judicial TIP and he also fail to identify the accused in the court. He was charge-sheeted for the offence U/s 392 IPC as the IO mentioned that during the PC remand, after the failure of judicial TIP, when the accused was in the police station he was identified by the complainant. This proved to be wrong as the complainant specifically deposed that he never visited the police station after State Vs. Sonu; CIS No. 5723/2021; FIR No. 108/21; PS Kashmere Gate; U/s. 392/411/34 IPC 4/9 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2022.04.12 17:15:05 +0530 CNR no. DLCT020106412021 the registration of the FIR. There is no re-examination of witness on this aspect. If the complainant not visited the police station after the registration of the FIR than how it is possible that during the PC remand of the accused, the complainant identified him. This is not believable at all.
13) To sum-up the identification of the accused Sonu as one of the offender for the offence U/s 392 IPC stands not established since the complainant failed to identify him in judicial TIP and thereafter failed to identify him in the court. Thus the offence U/s 392/34 IPC stands not proved against the accused Sonu.
14) Now coming to the offence U/s 411 IPC. The accused has been charge for the offence U/s 411 IPC with the allegations that he got recovered the wallet of the complainant on 02.04.2021 from a jhuggi outside Ranbasera. As per the case of the prosecution it is the accused Sonu who committed the offence of robbery and thereafter it was him only who was found in the possession of robbed articles. In other words, it is the same person Sonu who committed robbery and thereafter found in the possession of stolen articles. Since it is not proved that the accused Sonu was involved in the offence of robbery and thus it is came in cloud of doubt by itself that the recovery was effected from him.
15) Qua the aspect of robbery the prosecution examined SI Sandeep as PW2 and Ct Rinku as PW3. The testimony of both these witnesses are similar on the aspect of recovery. They deposed that on 01.04.2021 one day police custody remand of accused was taken and the accused produced one polythene from Ranbasera which he hide under the stones containing the wallet of State Vs. Sonu; CIS No. 5723/2021; FIR No. 108/21; PS Kashmere Gate; U/s. 392/411/34 IPC 5/9 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2022.04.12 17:15:11 +0530 CNR no. DLCT020106412021 the complainant. It is not disputed that the complainant identified the wallet in the court. Now the question is- how reliable is the recovery?
16) Ld LAC vehemently argued that the recovery was effected from a public place but even than there is no public witness. Ld. LAC further argued that no reliance could be placed upon the documents prepared during the PC remand as it is proved on record by virtue of testimony of the complainant that his presence was wrongly shown in the police station during the PC remand and in these circumstances it is imperative this court should look for independent corroboration from a independent witness as far as the recovery of wallet is concerned.
17) It is evident from the testimony of PW2 and PW3 that the recovery was effected from a public place. Both of them admitted in cross-examination that the place from where the recovery was effected was accessible to general public. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on the following case laws -
In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to State Vs. Sonu; CIS No. 5723/2021; FIR No. 108/21; PS Kashmere Gate; U/s. 392/411/34 IPC 6/9 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.04.12 17:15:16 +0530 CNR no. DLCT020106412021 join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
18) There was ample opportunity with the investigating officer to join public witness during the proceedings. There was no lack of time. The entire proceedings as to the recovery was conducted in a callous manner. Considering the aforesaid observations made by the Higher Courts, the omissions/failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story and are fatal to the prosecution version which establishes the defence version that there is total false implication of the accused in the present case and that the recovery was planted upon the accused.
19) During the cross-examination a very relevant question was put by Ld LAC as to the video recording of the proceedings both PW2 and PW3 admitted in the cross-examination that they were carrying their mobile phone having the facilities of camera but even than they did not make any video. If the police officials were having the mobile phone having camera facility and if no public witness was available than they should have made video recordings of the proceedings which was not done.
20) In view of the above-discussion following facts proved on record-
State Vs. Sonu; CIS No. 5723/2021; FIR No. 108/21; PS Kashmere Gate; U/s. 392/411/34 IPC 7/9 Digitally signed by KAPIL KAPIL KUMAR KUMAR Date:
2022.04.12 17:15:21 +0530 CNR no. DLCT020106412021
a) the complainant failed to identify the accused in judicial TIP;
b) the complainant failed to identify the accused in the court;
c) The averment of the IO that the complainant identified the accused in the police station during the PC remand proved to be false; and
d) The alleged recovery of the wallet from the possession of the accused is doubtful.
21) In the judgment titled as "S.L.Goswami v. State of M.P"
reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts State Vs. Sonu; CIS No. 5723/2021; FIR No. 108/21; PS Kashmere Gate; U/s. 392/411/34 IPC 8/9 Digitally signed KAPIL by KAPIL KUMAR KUMAR Date: 2022.04.12 17:15:26 +0530 CNR no. DLCT020106412021 upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution ..........................."
22) Accordingly, in view of above discussion, prosecution is not able to discharge its burden of proof against the accused. Accused Sonu is hereby acquitted from the present case. File be consigned to Record Room after due compliance subject to compliance of section 437 A Cr.PC.
Digitally signed KAPIL by KAPIL KUMAR
KUMAR Date: 2022.04.12
17:15:32 +0530
Announced in open court (Kapil Kumar)
on 12.04.2022 MM-07/Central District
Tis Hazari Courts/Delhi,
State Vs. Sonu; CIS No. 5723/2021; FIR No. 108/21; PS Kashmere Gate; U/s. 392/411/34 IPC 9/9