Delhi District Court
State vs Dilip Yadav @ Raj & Ors on 3 June, 2023
IN THE COURT OF SH. SACHIN SANGWAN :
ADDITIONAL SESSION JUDGE (FAST TRACK COURT - 01) :
SOUTH-EAST DISTRICT : SAKET COURTS : NEW DELHI
STATE Vs Dilip Yadav @ Raj & Ors
Case No. : 361/2018
FIR No. : 274/2017
U/S : 392/397/120B IPC
PS : Sarita Vihar
Particulars of the case
a) Date of Offence : 29.08.2017
b) Offence complained of or proved : 392/397/120B IPC
c) Name of the complainant : Sh. Anoop Kumar
d) Name of the accused No. 1 : Dilip Yadav
His parentage, Sh. Kanta Yadav
R/o H. No. E-147, Harsh
Vihar, Jaitpur
New Delhi
Name of the accused No. 2 : Rahul Lakhera
His parentage, Sh. Ram Chander
R/o H. No. C-239, Hari
Nagar, Part-II,
Jaitpur, New Delhi
Name of the accused No. 3 : Chintu Saini
His parentage, Sh. Satbir Saini
R/o H. No. I-88, Gali No. 10,
Hari Nagar, Part-II,
Jaitpur, New Delhi
SC No. 361/2018
FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 1 of 31
(proceedings against
accused Chintu Saini
abated vide order
dated 31.10.2022)
Plea of the accused : All accused persons
pleaded not guilty
Final order : Accused No. 1 and 2 acquitted
Date of Institution : 07.08.2018
Date of Judgment reserved for orders : 03.06.2023
Date of Judgment : 03.06.2023
JUDGMENT
1. CHARGE-SHEET 1.1 As per charge-sheet, on 31.08.2017 when SI Mukesh Kumar was present at Police Station, complainant Sh. Anoop Kumar produced a written complaint in the Police Station.
1.2 Vide his written complaint, the complainant stated that he is resident of H. No. 204, Sector 46, Faridabad, Haryana. On 29.08.2017, he was returning from his office situated at B-87, Defence Colony, New Delhi after his work. Then a boy namely Raj called him from mobile numbers 8860999515 and 8384060650 and he asked the complainant to come near Apollo Hospital as the complainant had earlier met Raj in search of job. At about 7 PM, complainant reached at Apollo Hospital. In the meanwhile, SC No. 361/2018 FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 2 of 31 Raj also came there and he told the complainant that the person with whom he had talked about the job will take time and he asked complainant that they shall sit in the nearby park of Apollo Hospital. Accordingly, they sat inside said park. Complainant saw that three persons were already present there. After some time one boy out of said three boys caught hold of complainant's hand from behind and put knife on his neck and the second boy caught hold of his legs and the third one snatched his bag and took out his Debit Card of State Bank of India and mobile phone from the bag and left his bag there. During this incident, they also caused beatings to him. One boy out of them also caught complainant's acquaintance Raj and snatched his mobile phone but they did not cause any beatings to him. Thereafter, said three boys fled from the park after threatening them. Complainant asked his acquaintance Raj that they shall approach the police but he replied that police will not take any action and no purpose shall be served by approaching the police. Complainant was frightened due to incident and he deemed it appropriate to go to his house at Faridabad. When he reached his house it was already 09:15 PM. He narrated the incident to his brother who got complainant's SBI Debit Card blocked. By that time, Rs. 10,500/- had already been transferred from his Debit Card to Paytm. The snatched mobile phone was of XOLO ER HD IMEI No. 911473901706629 and its mobile number was 9990120802. Complainant suspected that his friend Raj was the conspirator behind the incident since his mobile was found operational on the next day ie. 30.08.2017. Accordingly, the complainant pleaded that action shall be taken on his SC No. 361/2018 FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 3 of 31 complaint.
1.3 On the basis of said complaint, the case was registered u/s 392/34 IPC and investigation was commenced by SI Mukesh Kumar. During investigation, site plan was prepared at the instance of complainant and accused were tried to be traced in the nearby area. One secret informer met the IO and he informed him that accused are the residents of Jaitpur area. Accordingly, on the basis of such information, police officials alongwith complainant reached Jaitpur wherein accused Raj was apprehended at the instance of complainant. Interrogation of the accused Raj was conducted. He stated that his real name is Dilip Yadav and he used to meet complainant Anoop with the name of Raj. Thereafter, Dilip Yadav S/o Sh. Kanta Yadav was arrested. Vide his disclosure statement, accused Dilip Yadav @ Raj disclosed that he alongwith his known persons Chintu, Rahul and one CCL (child in conflict with law) had committed the crime wherein CCL and Chintu attacked on Anoop with knife and Rahul faked an attack on him and snatched his mobile phone. Later on, they all met at Luvkush Chowk wherein they transferred Rs. 10,500/- from the complainant's SBI Debit Card to Paytm and got it encashed from a shopkeeper at Luvkush Chowk. The cash was distributed amongst themselves and the looted mobile phone was handed-over to the CCL. The statement of complainant was recorded by IO and he was discharged. 1.4 At the instance of accused Dilip Yadav @ Raj, the search of other accused persons was made and accused Chintu Saini S/o Sh. Satbir Saini was arrested. Rs. 2,500/- were recovered from the residence of Chintu SC No. 361/2018 FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 4 of 31 Saini and the same were taken into police possession. Chintu Saini disclosed that the robbed ATM card was broken and thrown by him in drain near Luvkush Chowk. Hence, said card could not be traced by the police. Thereafter, at the instance of accused Dilip and Chintu, one CCL was arrested. During cursory search of CCL one mobile phone make Xolo was recovered and after checking the same it was found to be complainant's mobile phone.
Thereafter, the search of accused Rahul was conducted and at the instance of accused Chintu, the accused Rahul Lakhera S/o Sh. Ram Chander was arrested. Accused Rahul Lakhera was interrogated and he got recovered one knife from his residential house and disclosed that this was the knife used by them in the crime. The said knife was taken into police possession.
1.5 On 01.09.2017, accused Dilip Yadav, Chintu Saini and Rahul were produced before the concerned Court. Accused Chintu Saini and Rahul Lakhera refused to participate in the TIP proceedings and they both were sent to judicial custody by the Court.
1.6 Thereafter, the details of the complainant's bank account were obtained. As per same, on 29.08.2017 Rs. 10,500/- was transferred from the bank account of complainant to his Paytm account. Thereafter, SI Mukesh Kumar obtained the Paytm account details. As per same, on 30.08.2017 Rs. 10,500/- were transferred from the Paytm account No. 9990120802 of complainant to Paytm account No. 9934453814 and on the same date from the said account Rs. 5,400/- were transferred to Paytm account No. SC No. 361/2018 FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 5 of 31 9871274604 and Rs. 5000/- were transferred to Paytm account No. 9555543601. It was found that mobile numbers 9871274604 and 9555543601 were registered in the names of Rupender Pandey and Sonu Pandey.
1.7 On inquiry, Rupender Pandey and Sonu Pandey disclosed that they both run mobile shop and accused Chintu was residing with his family near their shop. On 30.08.2017, accused Chintu alongwith 2-3 friends had come at their shop and told that his mother was ill and he asked for monetary help. On request of accused Chintu, Rupender Pandey gave Rs. 5,400/- in cash to Chintu after getting the said amount transferred in his Paytm account. Likewise, Sonu Pandey gave Rs. 5,000/- in cash to Chintu after getting the said amount transferred in his Paytm account. Statements u/s 161 CrPC of Rupender Pandey and Sonu Pandey were recorded in this regard.
1.8 Thereafter, call details record of the mobile numbers of the accused persons were obtained. The ownership of Paytm account No. 9934453814 was also obtained and it was found that the said mobile number belonged to one Dinesh Kamat S/o Sh. Ganesh Kamat R/o Village Lakhnoor, District Madhubani, Bihar. ASI Hori Lal was sent at the address of Dinesh Kamat for inquiry. Therein he found that Dinesh Kamat was working as Plumber and he had never visited Delhi and he/ his family had no knowledge about said mobile number. Since no evidence was found against Dinesh Kamat, he was kept in Column No. 12 of the charge-sheet. 1.9 Police investigation report was filed against CCL before the SC No. 361/2018 FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 6 of 31 concerned Juvenile Justice Board-II. Sections 397/120B IPC were added in the case. Accused Dilip Yadav @ Raj, Rahul Lakhera and Chintu Saini were kept in Column No. 11 and after the completion of investigation, charge-sheet u/s 392/397/120B/411/34 IPC was filed them.
2. CHARGE 2.1 On the basis of charge-sheet, charge u/s 392/397/120B IPC was framed against all the accused persons to which they pleaded not guilty and claimed trial. Accordingly, prosecution was directed to lead evidence in support of the charge-sheet. However, during trial, accused Chintu Saini passed away and proceedings were abated against him on 31.10.2022. Hence, the present judgment is against Dilip Yadav @ Raj and Rahul Lakhera only.
3. PROSECUTION EVIDENCE 3.1 In support of its case, prosecution has examined 12 witnesses as follows:-
Serial Name of the witness Nature of the evidence No.
1. Sh. Sonu Public witness (running a mobile shop)
2. Sh. Roopender Public witness (running a SC No. 361/2018 FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 7 of 31 mobile shop)
3. Sh. Ajay Kumar Nodal Officer, Bharti Airtel
4. Ct. Rahul Witness who was with the IO during the investigation of the present case
5. Sh. Pawan Kumar Alternate Nodal Officer, Vodafone Idea Ltd.
6. ASI Nem Chand Duty Officer who registered the FIR on the basis of rukka
7. Sh. Dilip Kumar Service Manager, State Bank of India who produced the account statement of Anoop Kumar
8. Anoop Kumar Complainant
9. Sh. Roshan Vice President, Paytm Lakhiayar Payments Bank who produced the Paytm Wallet Statement of four Paytm accounts for the period between 29/30.08.2017
10. Ct. Vinod Witness to the arrest of two accused persons and one juvenile and also of the recovery of the case property ie., knife SC No. 361/2018 FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 8 of 31
11. ASI Hori Lal Who verified the details of the mobile number 9934453814 registered in name of Dinesh Kamat S/o Sh. Ganeshi Kamat
12. SI Mukesh Kumar IO of the Case 3.2 The prosecution has exhibited following documents/objects in support of its case:-
Serial Number of Exhibits Nature of Exhibits No.
1. Ex.PW3/A Certificate u/s 65B of Indian Evidence Act regarding the CDR of three phone numbers 9555543601, 9871274604 and 9934453814
2. Ex.PW3/B (colly) CAF, CDR and the (OSR) identification proofs pertaining to three phone numbers 9555543601, 9871274604 and 9934453814
3. Ex.PW4/A Disclosure statement of accused Dilip @ Raj
4. Ex.PW4/B Arrest memo of accused Dilip SC No. 361/2018 FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 9 of 31 @ Raj
5. Ex.PW4/C Personal search memo of accused Dilip @ Raj
6. Ex.PW4/D Disclosure statement of accused Chintoo
7. Ex.PW4/E Seizure memo of recovered amount of Rs. 2,500/- (in denomination of five notes of Rs. 500/-) at the instance of accused Chintoo
8. Ex.PW4/F Arrest memo of accused Chintoo
9. Ex.PW4/G Personal search memo of accused Chintoo
10. Ex.PW4/H Disclosure statement of accused Rahul
11. Ex.PW4/I Seizure memo of the knife which was got recovered by accused Rahul
12. Ex.PW4/J Arrest memo of accused Rahul
13. Ex.PW4/K Personal search memo of accused Rahul
14. Ex.P1 Knife
15. Ex.PW5/A Certificate u/s 65B of Indian SC No. 361/2018 FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 10 of 31 Evidence Act regarding the CDR of mobile number 8860999515
16. Ex.PW5/B (colly) CAF, CDR and the (OSR) identification proof pertaining to mobile number 8860999515
17. Ex.PW6/A Endorsement made by duty officer on rukka vide DD No. 10A
18. Ex.PW6/B Computerized copy of FIR
19. Ex.PW6/C Certificate u/s 65B of Indian Evidence Act regarding the genuineness of FIR
20. Ex.PW7/A Account statement of Anoop Kumar's account No. 361382171911
21. Ex.PW7/B Certificate u/s 65B of Indian Evidence Act regarding account statement of Anoop Kumar's account No. 361382171911
22. Ex.PW8/A Complaint
23. Ex.PW8/DA Site plan of the spot
24. Ex.P2 Xolo ERHD mobile phone SC No. 361/2018 FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 11 of 31
25. Ex.P3 Two photographs of mobile phone and Rs. 2,500/-
26. Ex.PW9/A Reply of the Paytm to the Notice u/s 91 CrPC seeking information of four Paytm accounts
27. Ex.PW9/B The Paytm Wallet statement of collectively (running 4 Paytm accounts for the into 6 pages) period between 29/30.08.2017 pertaining to mobile numbers 9990120802, 9871274604, 9934453814 and 9555543601
28. Ex.PW10/A Sketch of recovered knife
29. Ex.PW12/1 Seizure memo of bag which was handed-over to SI Mukesh Kumar by complainant
30. Ex.PW12/A Rukka/ tehrir
31. Ex.PW12/2 Application for TIP proceedings of accused Rahul and Chintoo Saini
32. Ex.PW12/3 Notice u/s 91 CrPC to the Branch Manager of SBI, Jasola Branch, Delhi to produce the statement of account of SC No. 361/2018 FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 12 of 31 complainant
33. Ex.PW12/4 The account statement of complainant's SBI account
34. Ex.PW12/5 Notice u/s 91 CrPC to the Nodal Officer, of Paytm Office, Noida, UP
35. Ex.PW12/6 Supplementary disclosure statement of accused Chintoo Saini
36. Ex.DA/1 (admitted TIP proceedings dated u/s 294 CrPC) 01.09.2017 3.3 Though 12 witnesses have been examined by the prosecution but the main witness of the case is PW - 8 Sh. Anoop Kumar/ Complainant.
He has deposed that one person namely Raj was his friend and he used to talk with PW8 on phone being friend. On 29.08.2017, he had talked with his friend Raj relating to job between 02:00 PM to 04:00 PM on PW8's mobile phone. They planned to meet near Apollo Hospital, Delhi. At about 05:30 PM/ 6 PM, PW8 reached near Apollo Hospital. After some time at about 06:45 PM/ 7 PM, his friend Raj arrived there. Thereafter, they went to the nearby park after drinking water. They sat in the said park and after some time they started walking and saw three boys who were not known to PW8. One of those three boys called them from behind by saying SC No. 361/2018 FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 13 of 31 "aye suno". One of them caught hold of his friend Raj. They pulled them upto some distance. One of them caught hold of his hand and put knife on PW8's neck and another held his legs. The third one had already caught hold of his friend Raj. The boys who had caught hold of PW8 snatched his bag which was carried by him. The said bag was containing his mobile phone, purse containing SBI Debit Card was also taken away by them. They had also snatched the mobile phone and purse of his friend Raj. Said three boys left the spot by extending threats to both of them (PW8 and his friend) by saying that "jahan baithe ho wahi ke wahi baithe rehna varna maar dia jaoge". At that time, they had also given beatings to PW8. He was frightened by the incident and asked his friend to complain the matter to the police but his friend said that "police kuch nahi karti hai". As PW8 was under fear, he went to his home at about 9 PM.
He narrated the incident to his brother who immediately blocked his SBI Debit Card. At that time before blocking the said ATM/ Debit Card, PW8 came to know that Rs. 10,500/- were already transferred to Paytm from his said Debit Card. PW8 waited for about 2-3 days. On 31.08.2017, he noticed that the number of his friend Raj was seen in the WhatsApp as "Last Seen" and was still under operation. PW8 got suspicion upon his friend Raj as both the mobile phones ie. his and his friend Raj's were snatched at the same time by those three boys then how come the mobile phone of Raj was still in operation whereas his phone was switched off. Thereafter, PW8 went to police station and made complaint Ex.PW8/A on 31.08.2017. On the same day, PW8 accompanied the police party SC No. 361/2018 FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 14 of 31 consisting of SI Mukesh and other police officials to Jaitpur where Raj was found and on his pointing out accused ie. his said friend Raj was apprehended by the police. Accused Dilip @ Raj was arrested vide memo Ex.PW4/B and his personal search was also got conducted vide memo Ex.PW4/C. Thereafter, accused Dilip @ Raj made his disclosure statement Ex.PW4/A to the police and PW8 came to know that real name of Raj was Dilip.
PW8 could not tell that as to who had used knife on the day of incident as it was evening time and he was terrified. But all the three accused persons present during his testimony in the Court and the CCL were involved in the incident. PW8 had also requested all the accused persons that he was not having anything but they did not listen to him. At the time of incident his mobile number was 9990120802. PW8 came to know from the police that his robbed mobile phone make Xolo ERHD and Rs. 2,500/- were got recovered from the accused persons and PW8 got released the same on superdari vide superdaginama. PW8 handed-over the ownership proof of his mobile. The receipt ie. document of his ownership of his mobile phone is Mark X. During his testimony PW8 identified accused Raj @ Dilip Yadav, Chintoo Saini and Rahul Lakhera in the court.
During his testimony PW8 identified the case property as Ex.P1 (knife), Ex.P2 (Xolo ERHD mobile phone) and Ex.P3 (two photographs of mobile and Rs. 2,500/-).
PW8 was duly cross-examined by Ld. Defence Counsel.
SC No. 361/2018FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 15 of 31
4. EXAMINATION OF ACCUSED U/S 313 CrPC 4.1 After conclusion of the prosecution evidence, accused Dilip Yadav @ Raj was examined u/s 313 CrPC wherein he denied all the allegations except that he was arrested in the present case. He stated that he has come to know the whole prosecution story for the first time on the date of his examination u/s 313 CrPC. He further stated that he knew the complainant Anoop Kumar but no such incident of robbery happened with Anoop Kumar as alleged. Accused Chintoo and Rahul were his friends but they had not committed the alleged offence. The complainant and accused himself had gone on 29.08.2017 at the park near the Apollo Hospital. The complainant was having physical relations with him and complainant asked him (accused) to bring his friends for having physical relations with him. After having physical relations with him (accused) and one another person, complainant Anoop Kumar refused to have physical relation with other persons. Thereafter, the other boys gave verbal abuses to complainant Anoop Kumar stating that after calling him he was not having physical relations with them. They took away his phone etc. and they left after threatening him.
4.2 Accused Rahul Lakhera also denied all the allegations except that he was arrested in the present case but he claimed that he was not arrested from his house, instead, he was lifted from Tanki Road, Badarpur. He stated that the knife was not recovered from him. He further stated that SC No. 361/2018 FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 16 of 31 he did not know anything about TIP. He stated that the present case was filed against him on the basis of suspicion only.
He claimed that he was not present at the alleged spot on the date of the incident and rather, he was present at his home at the alleged time on the date of incident. He did not even know the complainant of the case and the co-accused Chintoo. He only knew accused Dilip beforehand. He did not know the alleged juvenile involved in the present case. The knife was got recovered from the alleged juvenile when they were in the police station Sarita Vihar. Said juvenile got it recovered from the shop of some photographer. Accused Rahul Lakhera was not present when such recovery was effected from the shop of photographer but he was told by one ASI about such recovery when they i.e. himself, Chintoo and Dilip were in the police station Sarita Vihar. He further stated that he was neither involved in the incident nor the alleged knife was recovered from him.
5. DEFENCE EVIDENCE 5.1 Only accused Dilip Yadav chose to lead defence evidence and examined himself as Defence witness u/s 315 CrPC.
5.2 DW - 1 Dilip Yadav deposed that he met complainant of the case when he was coming in a bus from Lajpat Nagar. It was around 2016- 2017. His name was Anup. He was sitting beside him in the bus and he touched him. He was openly gay and he asked DW1 for physical relations. They exchanged numbers with each other. They again met after 4-5 days.
SC No. 361/2018FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 17 of 31 Their relationship continued. After one or two weeks, complainant also got familiar with his (DW1's) friends. He used to pay DW1 money each time after their relations and also used to pay for their meals.
On the date of incident, the complainant Anup called him and asked him to come near Apollo Hospital. DW1, his friends Chintu and Neeraj went there. DW1 and complainant established intimate relations therein. Chintu and Neeraj asked the complainant to establish relations with them but he refused. Thereafter, there was a quarrel between Anup on one side and Chintu and Neeraj on the other side. DW1 intervened and settled the quarrel and then all of them left from there. Nothing else happened on that day. Three days prior to the incident, complainant has given him (DW1) his ATM Card for use/ withdrawing money for himself. DW1 added money to Paytm account through said ATM. It was around Rs. 10,000/-. DW1 had done so about 2-3 days prior to the incident. Co-accused Rahul also knew his relations with complainant but he was not present at the spot on the date of incident.
Accused was duly cross-examined by the Ld. Additional PP for the State.
6. ARGUMENTS 6.1 Arguments were heard on behalf of the accused as well as Ld. Additional PP for the State.
6.2 Ld. Additional PP for the State has submitted that complainant SC No. 361/2018 FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 18 of 31 has deposed against the accused persons and has identified them during his testimony in the Court. Further, recovery of phone was effected from one of the accomplices of the accused ie., the CCL and the weapon of offence was also recovered from the accused persons. Moreover, the Paytm Transactions and the encashment of the amount by accused Chintoo Saini has also been proved by the prosecution. Accordingly, the case of prosecution stands proved.
6.3 On the other hand, Ld. Defence Counsel has argued that there is huge delay in the registration of the FIR and same shows that it was an afterthought and has been manipulated. He has argued that there is no independent witness to support the version of the complainant and there are number of inconsistencies in the version of the complainant. It has further been argued that even the Paytm transactions show the involvement of the Paytm account of one Dinesh Kamat but neither the mobile phone nor the SIM card of said number have been seized by the police nor said suspect was ever interrogated by the IO. Accordingly, it has been submitted that the accused persons are entitled to be acquitted as the prosecution has failed to prove its case beyond reasonable doubts.
7. POINTS FOR DETERMINATION 7.1 I have considered the arguments of the parties and have perused the record.
7.2 The relevant provisions applicable in present case are SC No. 361/2018 FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 19 of 31 reproduced herewith:-
Section 120B IPC provides for punishment of criminal conspiracy - " (1) whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.]"
The criminal conspiracy is defined in Section 120A IPC. It provides "when two or more persons agree to do, or cause to be done, -
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Section 392 IPC provides for punishment for robbery - "whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment SC No. 361/2018 FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 20 of 31 may be extended to fourteen years"
Section 390 IPC provides the conditions under which a theft amounts to robbery - "when theft is robbery - theft is "robbery"
if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
Section 397 IPC provides for enhanced punishment in certain cases of robbery ie., - "If, at the time of committing robbery or dacoity, the offender used any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."
7.3 From the facts of the case, arguments of the parties and the relevant provisions of the law, the following points for determination arise :-
1. Whether alleged robbery was committed with complainant at the given time and place?
2. If so, whether any or all of the accused committed such robbery?
3. If so, whether such robbery was committed in furtherance of SC No. 361/2018 FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 21 of 31 criminal conspiracy?
4. Whether any accused is liable for offence u/s 397 IPC?
8. APPRECIATION OF EVIDENCE AND APPLICATION OF LAW 8.1 The main witness of the case is the complainant himself. Rather, he is sole eyewitness of the alleged robbery. Hence, all points for determination depend on the veracity of the complainant. However, there are number of inconsistencies in his statements. Same are discussed in succeeding paras.
8.2 The presence of the complainant at the alleged place for the cause mentioned by the complainant appears to be misleading. In his complaint, he has mentioned that he happened to be at the alleged place and time since he was asked by his friend/ accused Dilip @ Raj to come at Apollo Hospital for a job but Dilip @ Raj stated that the concerned person will take time and accordingly, they went to the nearby park where the incident occurred. However, in his examination in chief, he has stated that "at about 05:30 PM/06:00 PM I reached near Apollo Hospital and after some time at about 6:45/7 PM my friend Raj arrived there. Thereafter, we went to the nearby park after drinking water. We sat in the said park and after some time we started walking and we found three boys who were not known to me." It is to be noted that in the said examination in chief there is no reference that the alleged person at Apollo Hospital was not available SC No. 361/2018 FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 22 of 31 or that on the pretext of waiting for him the accused Dilip @ Raj took the complainant to the park. It may also be noted that complainant has deposed in his cross-examination that at the time of incident he was working as Sales Executive in Cambe Tiger Company. Accordingly, complainant was already having a job and it is not stated in the examination of complaint or even in his complaint that accused Dilip @ Raj proposed any better job for him or for that matter the nature of job proposed by him. Interestingly, it is not even mentioned whether accused Dilip @ Raj was himself working anywhere or was unemployed. Rather, as per disclosure statement of the accused Dilip, he was a B.Com 2 nd year student. Same is relevant as it is hard to believe that an unemployed person would be arranging job for a person who is already employed. Moreover, it is nowhere stated in the complaint or in the examination of the complainant that he was having his resume or educational/ experience documents with him when he was going to meet some person for a job.
8.3 Even the manner of incident described in the complaint and in the examination of complainant appears to be different. In his examination in chief PW8 has deposed that "We sat in the said park and after some time we started walking and we found three boys who were not known to me. One of those three boys called us from behind by saying 'aye suno', one of them caught hold my friend Raj. They pulled us upto some distance." However, in the complaint, it is mentioned that he and his friend Raj came inside the park and he saw that 3 boys were already present in the park. It is mentioned that after some time, one of the said boys grabbed his hands SC No. 361/2018 FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 23 of 31 from behind and put knife on his neck and the second boy grabbed his legs. From the description given in the complaint, it appears that all this happened while complainant was sitting and not walking. Further, in the complaint, it is nowhere mentioned that any of the three robbers called the complainant and it is mentioned that straightaway the assault was made for robbery. Even no fact of pulling of complainant or accused Dilip @ Raj upto some distance by the robbers has been mentioned in the complaint. Further, the complainant has deposed that the boys who had caught hold of him snatched his bag which was carried by him. The said bag was containing his mobile phone and the purse containing SBI Debit Card was also taken away by them. They had also snatched the mobile phone and purse of his friend Raj. However, interestingly, in the entire complaint there is no mention of the robbery of the purse of the complainant or the robbery of the purse of his friend Raj. It is pertinent to note that the complaint was not made immediately after the offence and hence, it was not the case that complainant was under any stress/ trauma and thus, would have omitted such material facts. Furthermore, in his cross-examination he has deposed that he does not remember the exact amount kept in his purse but it may be around Rs. 300-350 only. However, there is no mention of any theft/ robbery of any currency in the entire complaint and same is limited to the robbery of mobile phones and ATM card. Further, as per seizure memo Ex.PW12/1 the complainant produced his bag and the same was seized by the police as case property. It is mentioned in the said seizure memo that the inner layer of the pocket of the bag had been cut and it was the same SC No. 361/2018 FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 24 of 31 bag which has been snatched by the robbers and after tearing it with knife they had taken away the mobile phone and the debit card from the same. Interestingly, no such fact of tearing of the bag by the robbers has been mentioned in the examination of the complainant.
8.4 Even the conduct of the complainant before the incident is not free from doubts. The complainant has deposed that he talked to his friend Raj between 2 PM to 4 PM on his mobile phone. It has come in the cross- examination of the complainant that he was using mobile phone number 9990120802 at the time of incident. The prosecution has proved CAF and CDRs of the phone numbers of accused Dilip Yadav as Ex.PW5/B collectively. However, there is no call from the said phone of accused Dilip @ Raj to the phone of complainant between 2 PM to 4 PM and the first call which has been made between said phone numbers on 29.08.2017 is of 07:09 PM. The prosecution has also filed the CDR of one mobile number 8384060650 which was in the name of Rahul Saini S/o Satbir Saini. Apparently, the said phone number belongs to accused Chintu Saini S/o Satbir Saini as the father's name and the address of the said accused is the same as mentioned in the CAF of said mobile number. Interestingly, one call has been made from the said mobile number to the mobile number of complainant on 29.08.2017 at 02:20 PM. Accordingly, it appears probable that complainant was previously known to the said accused. It is further pertinent to note that complainant has mentioned in his complaint that he was returning from his office after completing his work when he received the phone call from the accused Raj who called him at Apollo Hospital for SC No. 361/2018 FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 25 of 31 a job. During his cross-examination he has deposed that his duty hours were from 7 AM to 4 PM. Accordingly, he would have received the call about the job after 4 PM. However, as mentioned earlier the first call was made to complainant from the number of Chintu Saini at 02:20 PM and the second call was made from the mobile number of accused Dilip @ Raj at 07:09 PM. Since the complainant has deposed that he reached near Apollo Hospital around 5:30/6:00 PM, therefore, the second call is not relevant for the purpose of calling the complainant at the Apollo Hospital. Hence, the testimony of complainant is not consistent with circumstantial evidence. 8.5 Even the conduct of the complainant at the time of incident is doubtful. He has nowhere mentioned in his complaint or in his examination in chief that he raised any hue and cry during the incident or when accused were fleeing. It was not the case that he was at an isolated place or that no public person was available nearby. Rather, he has deposed in his cross- examination that when he and his friend Dilip @ Raj reached at the park there were many other persons present there. It may also be noted that during his cross-examination complainant failed to identify as to which particular accused had snatched his bag on the date of incident. During his examination in chief itself he failed to tell which accused had used the knife on the date of the incident. Though he has tried to explain that it was evening time and he was terrified but considering other inconsistencies in his statement the said fact further creates doubt in his testimony. 8.6 Even the conduct of the complainant after the incident is not free from doubt. The incident was not immediately reported to the police SC No. 361/2018 FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 26 of 31 and the only explanation given by the complainant was that he did not approach the police since his friend Dilip @ Raj suggested that police will not do anything. It may be noted here that place of incident was proximate to the police station Sarita Vihar and rather complainant has admitted in his cross-examination that police station Sarita Vihar is situated in front of Apollo Hospital. The explanation given by complainant does not inspire confidence as it is not believable that the complainant did not approach the police just because his friend suggested otherwise. Further, the complainant has stated that he realized about the role of his friend Dilip @ Raj in the incident when he found that the phone of his friend was operational, even after the robbery. In this regard, complainant has stated in his complaint that he discovered the said fact on the next date of incident ie., on 30.08.2017. However, in his examination in chief he has mentioned that on 31.08.2017 he noticed that the WhatsApp of his friend Raj was active as per "Last Seen". Thus, there discrepancy in the statement of complainant regarding the date of alleged discovery. All these facts cumulatively add up and create doubts regarding the credibility of the complainant and consequently the incident itself.
8.7 There are certain aspects of investigation which suggest that complainant knew the identity/ address of the accused persons beforehand. It is to be noted that once the FIR was registered on 31.08.2017 all the accused persons were arrested within few hours on the same date. As per the charge-sheet, when the complainant went with the IO for tracing the accused, one secret informer met the IO and informed him that the accused SC No. 361/2018 FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 27 of 31 involved in the present case is the resident of Jaitpur. However, in the entire examination of the IO PW12 SI Mukesh Kumar no such fact is mentioned and he has straightaway referred to the arrest of accused Raj @ Dilip near Luvkush Chowk, Jaitpur. Even complainant has not referred to any secret informer meeting the police party and has straightaway referred to the arrest of accused Raj @ Dilip. Interestingly, he has deposed in his cross- examination that police kept his mobile number and the mobile number of accused Dilip @ Raj on surveillance and thereafter, upon this surveillance he alongwith police officials reached in the area of location of accused Dilip @ Raj and apprehended him. However, no such fact of tracking the accused by surveillance of phones has been mentioned by any police witness. Thus, there is apparent contradiction as to how accused Dilip @ Raj was traced.
The complainant has deposed in his cross-examination that neither he ever visited the house of accused Dilip @ Raj nor said accused ever visited his house. However, in his cross-examination, complainant has stated that he went to the house of Dilip @ Raj with police. Surprisingly, it is not the case of prosecution that said accused was arrested from his house. Rather, IO has specifically deposed that he was arrested from Luvkush Chowk. However, PW4 Ct. Rahul has deposed that at the instance of complainant the accused Dilip @ Raj was arrested from his house ie., E- 171, Harsh Vihar, Jaitpur, Delhi. Thus, the place of arrest of accused Dilip @ Raj is ambiguous.
Further, as per IO, after the arrest of accused Raj @ Dilip SC No. 361/2018 FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 28 of 31 supplementary statement of complainant was recorded and he left them. Thus, IO has implied that complainant was not involved in tracing out/ in arrest of other accused persons. However, complainant has deposed in his cross-examination that from the house of the accused Dilip @ Raj they came back to the police station. Thus, circumstances of the arrest of accused persons suggest that complainant was knowing the address of accused Dilip @ Raj and may be the details of the other accused persons also and hence all the accused persons were arrested on the same day soon after the FIR.
8.8 There are other doubts also regarding the modus operandi by which the money was allegedly transferred from the account of complainant. It is the case of prosecution that by using the ATM card and the mobile of the complainant the accused persons transferred the alleged amounts firstly from complainant's bank account to his Paytm and thereafter from his Paytm account to another Paytm account linked to phone number 9934453814. Thereupon the amount was further transferred to two shopkeepers PW1 and PW2 and cash was taken in lieu of the same by accused Chintu Saini from PW1 and PW2. Court has two reservations regarding said sequence/ modus operandi. Firstly, it is not clear that the transfer of the money from the ATM card of the bank to the Paytm account was possible without knowing the ATM pin. Said fact is relevant since accused Dilip @ Raj has claimed in his cross-examination as DW1 that ATM card was given voluntarily by the complainant and even the ATM pin was given to him by the complainant. Secondly, the alleged phone number SC No. 361/2018 FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 29 of 31 9934453814/ Paytm account was found to be registered in the name of one Dinesh Kamat. The IO of the case did not examine said person and rather sent one HC Hori Lal for investigating subscriber of said phone number. Said police official has been examined as PW11. However, as per his testimony, he met only the wife/ family of said Dinesh Kamat and did not examine said Dinesh Kamat personally and talked to him on phone only. Thus, admittedly, it was not further investigated as to how the said SIM number came to be in the possession of accused Chintu Saini. Even the alleged SIM or the phone in which the said SIM was used was not recovered at the instance of accused Chintu Saini. Only his disclosure statement has been recorded to the effect that he found such SIM lying on road and he had destroyed the same after its use. It has not been investigated as to how said number was used to operate a Paytm account without any verification, or if any verification was done, how accused Chintu Saini managed to get the same verified. Thus, even the modus operandi of using the ATM card and transfer of the amount to the Paytm account of one Dinesh Kamat has not been proved beyond reasonable doubts. Though PW1 and PW2 have deposed against accused Chintu Saini being the ultimate beneficiary of the transaction, however, since accused Chintu Saini did not stand the complete trial, having expired during the trial, there was no occasion for him to put a defence against said allegations and hence Court is hesitant to read the same against his co-accused.
9. CONCLUSION SC No. 361/2018 FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 30 of 31 9.1 In view of above said discussion, prosecution has failed to prove its case against the accused persons beyond reasonable doubts. Hence, accused Dilip Yadav @ Raj and Rahul Lakhera are acquitted from all the offences charged against them U/s 392/397/120B IPC.
(Announced in the Open Court Digitally signed
by SACHIN
on 3 rd June 2023) SACHIN SANGWAN
SANGWAN Date:
2023.06.03
17:11:33 +0530
(SACHIN SANGWAN)
Additional Sessions Judge, (FTC)-01,
South-East District, Saket Courts,
New Delhi/03.06.2023
SC No. 361/2018
FIR No. 274/2017 State v. Dilip Yadav @ Raj & Ors Page no. 31 of 31