Delhi District Court
State vs . Nitin @ Sonu & Anr Fir No. 275/2014 on 2 March, 2020
State vs. Nitin @ Sonu & Anr FIR No. 275/2014
IN THE COURT OF MS. BABITA PUNIYA: METROPOLITAN
MAGISTRATE-06, WEST DISTRICT,
TIS HAZARI COURTS, DELHI
State vs. Nitin @ Sonu & Anr
FIR No. 275/2014
U/sec. 392/411/34 IPC
PS: Mundka
Date of institution of the case: 14.07.2015
Date on which judgment is reserved: Not reserved
Date on which judgment is delivered: 02.03.2020
Unique I. D. No. 65362/2016
JUDGMENT
a) Date of commission of the offence : 07.06.2014 b) Name of the complainant : Raghav Narang
c) Name of the accused and his parentage :1. Nitin @ Sonu S/o Shri Dev Karan R/o A-57, Mangolpur Kalan, Sec -2, Rohini, Delhi.
2. Pradeep @ Birju S/o Shri Karan Singh, R/o RZ-91, Gangotri Enclave, Gopal Nagar, Delhi.
d) Offence complained of : Sec. 392/411/34 IPC
e) Offence charged of : Sec. 392/394/411/34 IPC
f) Plea of the accused : Pleaded not guilty
g) Final order : Acquitted
h) Date of such order : 02.03.2020
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State vs. Nitin @ Sonu & Anr FIR No. 275/2014
i) Brief reasons for the just decision of the case:
Succinctly stated facts of the prosecution case are that on 7 June 2014 at about 1:30 p.m., while the complainant was going to Aashirwad Properties by his car; two persons robbed him of his car. The complainant reported the matter to police and on the basis of his statement/Ex.PW1/A, present FIR was registered against unknown persons at police station Mundka under sections 392/34 IPC.
On 4 April 2015, accused Pradeep @ Birju was arrested by the police of police station Najafgarh in case FIR No. 986/2014 wherein he allegedly admitted to have committed the offence with his associate Nitin @ Sonu. Consequently, they were arrested in the present case and an application was moved for holding Test Identification Parade (TIP) but accused persons declined to participate in the TIP proceedings. The robbed car was also recovered at the instance of accused Pradeep while he was in the custody of Inspector Vidhyadhar, who was the IO of the case FIR No.246/14, PS IGI Airport.
After completion of the investigation, charge-sheet under sections 392/411/34 IPC was filed before the court. Consequently, accused persons were summoned to face the trial. On their appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to them as per norms.
Vide order dated 02.09.2015, charge under sections 392/394/34 IPC was framed against both the accused persons. In addition, charge under section 411 IPC was also framed against the accused Pradeep. Charges were explained to them in vernacular to which they pleaded not guilty and claimed trial.
With a view to connect the accused with the crime, the prosecution has examined as many as six witnesses.
PW1/Raghav Narang was the complainant as well as the victim. He testified that in the year 2014, he used to run a shop in PVC market, Tikri Village in the name and style of Choudhary Raghunath & Sons. He stated that on 07.06.2014 at about 01:20 pm/01:25 pm, he was going by his car bearing registration no.DL-8CN- A4470 make Hyundai I-20 of white colour. When he stopped his car near Page 2 of 13 State vs. Nitin @ Sonu & Anr FIR No. 275/2014 Ashirwad Property shop for the purpose of taking juice from the rehri, a person came and put a gun on his abdomen and asked to come out of car immediately otherwise he would shoot him. He stated that he resisted but another person came and caught hold him from his neck. He stated that due to fear, he came out of his car and those persons took away his car forcibly by showing the gun. He stated that they asked him to maintain the distance from them and thereafter they ran away from the spot alongwtih his vehicle. He stated that he immediately called at 100 number. After sometime, he again called at 100 number. Thereafter, PCR van and after sometime local police from PS Mundka came at the spot. He narrated the whole incident to the police officials and also gave physical description of both the persons who had forcibly at gun point taken away his vehicle. He stated that one of them was fair having good built and good height while another was of wheatish complexion and both were of age of 25-30 years. He also shown the place of incident to the police officials. Police recorded his statement/Ex.PW1/A and prepared the site plan/Ex.PW1/B. He stated that on 10.06.2015, he received a call that his vehicle has been recovered.
When he was asked to identify the accused persons, he stated that those persons were not present in the court.
Since the witness failed to identify the accused persons, he was cross-examined by the learned APP for the State with the leave of the court.
He during his cross-examination by the learned APP for the State admitted the suggestion that when gun was shown to him, he felt terrorized. However, he stated that he was not terrorized today. He denied the suggestion that he has not identified the culprits due to fear. When his attention was drawn towards the accused persons present in the court, he stated that he cannot say whether they were the same persons or not due to lapse of time. He stated that he does not remember today the face of the actual assailants. He denied the suggestion that due to fear he was deliberately not recognizing the accused persons.
Page 3 of 13State vs. Nitin @ Sonu & Anr FIR No. 275/2014 PW2/Ram Parvesh was also projected as an eye witness to the occurrence. He testified that on 07.06.2014 at about 01:30 pm, while he was present at his Panwadi shop, he heard a noise that one white car has been robbed. He stated that he had not seen the accused persons as he was busy in his daily business.
Since he resiled from his previous statement purportedly given to the investigating officer during the course of investigation, he was cross-examined by the learned APP for the State with the leave of court and confronted him with his previous statement Mark A1.
He during his cross-examination by the learned APP for the State stated that he is illiterate and cannot read and write Hindi. He denied having witnessed the incident. When he was confronted with his previous statement Mark A-1, he denied having made the same. When his attention was drawn towards the accused persons present in the court, he could not identify them. He denied the suggestion that he was deliberately not deposing the true fact of the case or that he was deliberately not identifying the accused persons in the court or that he was deliberately not disclosing the identity of the said vehicle, which was robbed or that he was deposing falsely.
PW3/SI S. P. Samaria was the IO of case FIR No. 986/2014 registered at police station Najafgarh. He testified that on 03.04.2015 he was posted at PS Najafgarh as SI and was investigating the case FIR no. 986/14. On that day, he received a secret information that the accused Pardeep would come to Nangli Vihar, Najafgarh to meet his girlfriend. Accordingly, he informed the SHO and constituted a raiding party consisting of SI Ravi, HC Jai Bhagwan, Constable Giriraj, Constable Ashok, Constable Amarpal and Constable Kuldeep and reached at Nangli Vihar and arrested the accused Pradeep from the Tube-well of Sukhbir at the instance of informer.
He stated that during interrogation, accused made disclosure statement Ex.
PW3/B.
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State vs. Nitin @ Sonu & Anr FIR No. 275/2014
PW4/SI Rajiv Gulati had accompanied Inspector Vidyadhar during investigation of case FIR No. 246/2014 registered at police station IGI Airport.
PW5/Inspector Vidyadhar was the IO of case FIR No. 246/2014 registered at police station IGI Airport. He testified that on 01.05.2015, he was posted as Inspector at IGI airport and was investigating case FIR no. 246/14. During investigation, he received information from PS Najafgarh regarding arrest of accused Pradeep @ Birju and Amit @ Khachar in case FIR no 986/14, PS Najafgarh and their involvement in his case. Accordingly, he moved an application before the concerned court for production of accused person. Both the accused persons were produced before the concerned court on production and were formally arrested with the permission of the court. During interrogation, they made disclosure that they can get recovered the car which was used in case FIR No. 246/14 which was robbed from area PS Mundka. He stated that he recorded disclosure statement of accused Pradeep Ex. PW 5/B and obtained his one day police custody. Thereafter, he along with SI Rajiv Gulati, Constable Sandeep and 4-5 other police officials went to Suratpur Road, near Jal Board Office, Najafgarh Road and recovered the I-20 car on pointing out of accused Pradeep which was lying besides the wall of Jal Board office. He stated that the car was seized vide Ex. PW 4/A and deposited it in the malkhana and informed PS Mundka regarding recovery of the car and handed over the relevant document regarding recovery and arrest of the accused Pradeep to the IO of this case.
He during his cross-examination by the learned legal aid counsel stated they went to the place of recovery in the government vehicle but he does not remember the exact time, however, it was noon time. He denied the suggestion that he could not remember the time as he was not present there at the time of recovery. He stated that departure entry was made before reaching the place of recovery. The distance between the PS IGI Airport and place of recovery was about 15-20 kms. They reached there within 45 minutes. He does not remember what was the position of the accused while sitting in the vehicle. He stated that he does not remember the name of all the police officials who had accompanied him to the place of recovery.
Page 5 of 13State vs. Nitin @ Sonu & Anr FIR No. 275/2014 At that time, he was IO of the case FIR No. 246/14 PS IGI Airport, New Delhi. He does not remember the registration number of aforesaid government vehicle due to lapse of time. He admitted the suggestion that no written notice was given to the public persons who refused to join the proceedings as they were mentioning their urgency. He stated that he did not note down their name and address. He stated that they remained there for about 1-2 hours. He stated that they did not inform any official of PS Najafgarh regarding their visit at the place of recovery. He denied the suggestion that no recovery was effect and he prepared all the memo while sitting in the police station. He stated that the place of recovery was open and accessible to the public persons. He stated that he personally did not make any entry in the logbook regarding government vehicle. He stated that driver might have made the entry in this regard. He stated that he did not make any inquiry from the local area people. He voluntarily stated that the spot was not the residential or commercial area. He denied the suggestion that the alleged recovery was falsely planted upon the accused persons. He stated that he did not make any inquiry from the officials of Delhi Jal Board as none was present in the office. He stated that he informed to the IO of the present case regarding recovery of car on 09.06.2015. He denied the suggestion that he did not hand over any of the documents regarding arrest and disclosure statement of accused Pradeep to the IO of the present case or that accused did not make any disclosure statement to him regarding the present case or that he was deposing falsely to establish the case FIR no. 246/2014, PS IGI Airport.
PW6/SI Manoj Chahar was the IO of this case. He testified that on 07.06.2014, he was on emergency duty. On that day at about 01:45 p.m., a call was received vide DD no. 24-A regarding robbery near Ashirwad properties, PVC market, Tikri Kalan. Therefore, he along with Constable Ashok went there and met the complainant namely Raghav Narang. He recorded his statement/Ex. PW1/A regarding robbery of car no. DL-8C-NA-4470 make I-20 and prepared the rukka and handed over the same to Constable Ashok for registration of FIR. Accordingly, he went to PS and after registration of FIR, returned to the spot and handed over the copy of FIR and rukka to him.
Page 6 of 13State vs. Nitin @ Sonu & Anr FIR No. 275/2014 He stated that thereafter, he prepared site plan/Ex. PW1/B and enquired from the public persons and recorded the statement of public witnesses.
He further stated that on 05.04.2015, he received information from PS Najafgarh regarding arrest of accused Pradeep in case FIR no. 986/14 wherein he made disclosure regarding this case. He collected the disclosure statement of accused from PS Najafgarh and got the production warrants issued. He stated that on 11.05.2015, he interrogated the accused Pradeep with the permission of the court and arrested him vide memo Ex. PW6/B and recorded his disclosure statement/Ex. PW6/C. Thereafter, he moved an application for TIP of accused but accused refused to join the TIP proceedings. He stated that he also formally co-accused Nitin vide memo Ex. PW6/D and also recorded his disclosure statement/Ex. PW6/E. An application for TIP of accused Nitin was also moved but he too refused to join the TIP proceedings. He stated that after completion of investigation, he prepared the challan and filed it before the court.
One of the eye-witnesses namely Rameshwar could not be examined by the prosecution despite availing numerous opportunities. As per the report submitted by the office of DCP, his present whereabouts were not known. Therefore, considering the report submitted by the office of worthy DCP, he was dropped from the list of witnesses and PE was closed.
After prosecution evidence, statement of accused Pradeep under section 313 of the Code of Criminal Procedure, 1973 (herein after referred to as the Act) was recorded to afford him an opportunity to explain the incriminating circumstance. He denied the allegations and pleaded false implication. However, he did not lead any defence evidence.
As far as accused Nitin is concerned, since there was no incriminating circumstance against him, recording of his statement was dispensed with.
I have heard the learned legal aid counsel for the accused and the learned APP for the State and have perused the records very carefully.
Issues
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State vs. Nitin @ Sonu & Anr FIR No. 275/2014
1. Whether the accused persons robbed the complainant of his car?
2. Whether accused Pradeep received and retained the robbed/stolen property i.e. the car "knowing or having reason to believe the some to be stolen property"?
Decision and brief reasons for the same The rule that every accused person is presumed innocent until he is proved guilty and that it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt is fundamental to the system of justice practiced in this country and in several other countries. Indeed it is entrenched in the Constitution that every person charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty.
Issue No.1 In every criminal trial, the identity of the malefactor must be established by proof beyond reasonable doubt. Indeed, the first duty of the Prosecution is not to prove the crime but to prove the identity of the offender, for even if the commission of the crime can be established, there can be no conviction without proof of identity of the offender beyond reasonable doubt.
Onus is, thus, on the prosecution to prove beyond reasonable doubt that the person facing the trial is, in fact, the same person who committed the offence.
The Hon'ble High Court of Delhi while dealing with the identity of the accused in the case of Ashraf vs State held as under:-
"....However, in case a witness is completely hostile with regard to identity of the accused even in his examination-in- chief and nothing could be elicited from him to show the involvement of the accused in the offence in the cross- examination by the APP, such a testimony cannot be accepted and made the basis of the conviction....."
The present FIR was lodged on 7 June 2014 against un-known persons. Accused persons were implicated on the basis of their alleged disclosure statements given to the Investigating Officer during the course of investigation and on their refusal to Page 8 of 13 State vs. Nitin @ Sonu & Anr FIR No. 275/2014 participate in the Test Identification Parade. It is, therefore, incumbent upon the State to prove all the elements of the offence, including the identity of the robbers, beyond a reasonable doubt.
To bring home the guilt of the accused persons, prosecution has cited as many as fifteen (15) witnesses in the list of witnesses annexed with the charge-sheet. Out of these fifteen witnesses, PW1 was the complainant as well as the victim, PW/Ram Parvesh and PW/Rameshwar were projected as eye witnesses to the occurrence while rest witnesses are formal in nature and the identity of the accused persons and their guilt cannot be established from their testimonies, inasmuch as, the alleged incident of robbery was neither committed in their presence nor it is the case of the prosecution.
The complainant Raghav Narang stepped into the witness box as PW1 and exhibited his statement as Ex. PW1/A. He during her examination-in-chief could not identify the accused persons. Therefore, he was cross-examined by the learned APP for the State with the leave of the court and his attention was drawn towards the accused persons standing in the dock but he stated that he cannot say if those persons were the robbers due to lapse of time. He stated that he does not remember the face of the robbers. He denied the suggestion put forth by the learned APP for the State that he was deliberately not identifying the robbers due to fear.
The State then called Ram Parvesh, ostensibly to support the prosecution story. Unfortunately, instead of supporting the case of prosecution, he also turned hostile. He testified that on 07.06.2014 at about 01:30 p.m., while he was present at his shop, he heard some noise. He denied having seen the robbers on the pretext that he was busy in his work. Therefore, he was also cross-examined by the learned APP for the State but he could not identify or recognize the accused persons as the robbers. He also denied having witnessed the incident and despite lengthy cross- examination by the learned APP for the State, nothing could be elicited from him which could indicate complicity of the accused persons in the crime of robbery.
As far as PW/Rameshwar is concerned, he could not be examined by the Page 9 of 13 State vs. Nitin @ Sonu & Anr FIR No. 275/2014 prosecution despite availing numerous opportunities. Even his presence could not be secured through the office of worthy DCP.
Thus, in my considered opinion, identity of the accused persons could not be established and in absence thereof, there is no other material on record to connect the accused persons with the crime of robbery.
In the absence of proof beyond reasonable doubt as to the identity of the culprit, the accused's constitutional right to be presumed innocent until the contrary is proved is not overcome, and he is entitled to an acquittal, though his innocence may be doubted. The constitutional presumption of innocence guaranteed to every individual is of primary importance, and the conviction of the accused must rest not on the weakness of the defence he put up but on the strength of the evidence for the Prosecution.
Issue no.2 As per prosecution, accused Pradeep was arrested by PW3/SI S. P. Samaria on 30.04.2015 on the basis of secret information. He whilst in police custody admitted having committed the offence in question. Consequently, his disclosure statement/Ex.PW3/B was recorded. It reads as under:-
"कररीब 8/9 महरीनन पहलन हम नन ववारदवात करनन कन ललए Mahesh @ Sunny, Sonu व Shakti कन सवाथ ममल कर Tikari Stand सन पहलन I-20 कन मवाललक कक ममनन pistol मदखवाकर I-20 गवाड़री छरीनरी थरी जकमक I-20 इसकन बवाद Sunny व Sonu लन गए थन जक कक मम शमक कक पकड़ववा सकतवा हह ह और pistol recover करववा सकतवा हह ह"
Thereafter, his police custody remand was obtained by PW5/Inspector Vidyadhar, who was investigating a murder case. Accused whilst in the custody of Inspector Vidyadhar made following disclosure statement:-
"I-20 ककर बरकमद करक सकतक हह . ...............I-20 ककर अभभ पपरदभप @ बबलह व शककत use कर रहह हह ......असलक व गकड़भ व शककत व बबलह सभभ कक पकड़वककर बरकमद करकऊऊगक"Page 10 of 13
State vs. Nitin @ Sonu & Anr FIR No. 275/2014 Pursuant to the above disclosure statement, the robed car was recovered from Delhi Jal Board premises vide Ex.PW4/A. It is pertinent to note that in the disclosure statement dated 4 April 2015/Ex.PW3/B, accused Pradeep had disclosed that ".....जकमक I-20 इसकन बवाद Sunny व Sonu लन गए थन".
(The car had been taken by co-accused Sunny and Sonu). While in police custody, after about 26 days of his arrest, in the second disclosure statement dated 30 April 2015/Ex.PW5/B, accused Pardeep is alleged to have said that he could get recov- ered the car. Relevant part of the statement reads as under:-
"I-20 ककर बरकमद करक सकतक हह . I-20 ककर अभभ पपरदभप @ बबलह व शककत use कर रहह हह ..."
Both the disclosure statements are inconsistent with each other, which creates doubt about the genuineness of the prosecution case regarding recovery of alleged robbed car at the instance of accused Pardeep.
Further, the alleged disclosure statement Ex.PW5/B is silent about the place of al- leged recovery. Even PW5 has nowhere stated that accused Pradeep disclosed the "place" where the above referred "car" was "hidden" or that he led them to the place of recovery.
Thus, prosecution has failed to prove that the place from where the car was recov- ered was within the exclusive knowledge of the accused Pardeep.
At this stage, it would be advantageous to refer a judgment passed by the Hon'ble Supreme Court of India in the case of Amitsingh Bhikamsing Thakur vs State of Maharashtra decided on 5 January 2007 wherein it was observed as under:-
"At one time it was held that the expression "fact discovered"
in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact, now it is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowl- edge of the accused as to this, as noted in Palukuri Kotayya's case (supra) and in Udai Bhan v. State of Uttar Pradesh (AIR 1962 SC 1116)."
Page 11 of 13State vs. Nitin @ Sonu & Anr FIR No. 275/2014 Further, the place from where the alleged recovery was effected was "open and ac- cessible" to others. Here it is pertinent to mention that it is not the case of prosecu- tion that the car was kept hidden or concealed or that it was ordinarily not visible to others. Therefore, it cannot be said that the accused had the exclusive knowledge as to where the car was kept.
In such circumstance the recovery of car from an open space visible to others can- not be of any avail to the prosecution.
Conclusion In a criminal case the burden of proof is on the prosecution to prove the case against the accused beyond reasonable doubt. The burden never shifts. An accused enjoys the presumption of innocence. There is no duty on an accused person to purge himself of guilt. Where there is a lingering doubt, the accused person is given the benefit of the doubt. A Court cannot draw an inference of guilt from mere suspicion.
Suspicion, no matter how strong cannot take the place of legal proof.
It is a well settled principle of criminal jurisprudence that if the prosecution fails to prove the culpability of the accused beyond reasonable doubt then the benefit of doubt must go to the accused. In this regard the Hon'ble Apex Court in Rang Bahadur Singh vs. State of U.P. - (2000) 3 SCC 454 observed as under:-
"22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time- tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt Page 12 of 13 State vs. Nitin @ Sonu & Anr FIR No. 275/2014 about the involvement of the appellants in the crime."
Result In the sum, I am of the view that the prosecution has failed to prove beyond reasonable doubt that the persons, who robbed the car of the complainant on that fateful day of 7 June 2014, were Nitin @ Sonu and Pardeep @ Birju. Prosecution has also failed to prove beyond reasonable doubt that accused Pradeep received and retained the robbed/stolen property i.e. the car "knowing or having reason to believe the some to be stolen property". I, therefore, accordingly acquit accused persons namely NITIN @ SONU and PRADEEP @ BIRJU of the crime charged.
File be consigned to record room after due compliance.
Announced in open Court on 2nd day of March, 2020 (Babita Puniya) MM-06, West District, Tis Hazari Courts/ Delhi/02.03.2020 Digitally This judgment contains 13 pages and each page bears my signature. signed by BABITA BABITA PUNIYA PUNIYA Date:
2020.03.11 17:19:28 +0530 (Babita Puniya) MM-06, West District, Tis Hazari Courts/ Delhi/02.03.2020 Page 13 of 13