Delhi District Court
State vs Babloo Kumar on 20 April, 2022
IN THE COURT OF MS. NEHA PANDEY, MM-06 (N)
ROHINI COURTS: DELHI
State Vs Babloo Kumar
FIR No. : 132/2015
U/S : 392/411 IPC
P.S. : Adarsh Nagar
JUDGMENT
a) CIS No. of the case : 5291859/2016
b) Date of institution of the case : 29.04.2015
c) Date of commission of offence : 28.02.2015
d) Name of the complainant : Sanju Yadav
d/o Jaipal
e) Name & address of the : Babloo Kumar
S/o Sh. Ramavtar
Accused R/o Vill. Pathakpur Post Kadir
PS- Sorrow Dist. Kashiram
Nagar (U.P)
f) Offence charged with : 392/411 IPC
g) Plea of the accused : Pleaded not guilty
h) Arguments heard on : 01.04.2022
i) Final order : Acquittal
j) Date of Judgment : 20.04.2022
FIR No. 132/2015 PS Adarsh Nagar State vs. Babloo Kumar page 1 of 15
BRIEF STATEMENT OF REASONS FOR DECISION
1. Briefly stated, accused have been sent to face trial with the allegations that on 28.02.2015 at around 8:00 am, near Grossary Store, Mandir vali Gali Gopal Nagar, Azadpur, Delhi within the jurisdiction of PS Adarsh Nagar, the accused robbed one mobile phone of complainant Smt. Sanju Yadav and for the said purpose slapped her and put her in fear of injuries to herself by committing the offence u/s 394 IPC and also on 01.03.2015 near Azadpur flyover the said mobile phone were recovered from possession of accused and thus he committed the offence of 411 IPC. Investigation was carried out.
2. Upon completion of investigation charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO and the accused persons were consequently summoned. A charge u/s 394/411 IPC was framed against accused on 13.05.2015 to which he pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, prosecution examined total of 12 witnesses and exhibited documents.
4. The testimony of the prosecution witness in brief is discussed here as follows:
5. PW-1/ the complainant Sanju Yadav stated on oath that on 28.02.2015 while she was on her way to gopal nagar for work, around 8:00am while reaching Mandir vali gali Gopal Nagar in front of grocery shop the accused came behind and slapped her on FIR No. 132/2015 PS Adarsh Nagar State vs. Babloo Kumar page 2 of 15 face and upon resistance he slapped her 3 to 4 times and also slashed the mobile phone from her hand and ran away from the spot. She further stated that later inform her father about the incident who call the PCR and the police officials arrived the spot of incident and prepared the site plan and also her medical examination was conducted. She further stated that before the incident of 28.02.2015 the accused tried to befriend her but he was made understand by his father and she further stated that the accused is known to her as he was her tenant. She further stated that on 01.03.2015 the accused was arrested and her mobile phone was also recovered from his possession which was the seized by the IO and later it was released on Superdari by the Court.
On cross examination by the defence counsel the witness admitted that at the time of incident no other person apart from her the accused were present there. She stated that there was only one shop at the place and she did not make noise about the incident. She stated to have gone to police station with her father. She stated to have known the accused from last 3 to 4 years. She admitted of no having any bill of the mobile phone as the same was purchase by her brother. She denied the suggestion of the accused counsel that the mobile phone was planted by the police upon the accused at her behest.
6. PW 2 Manju Yadav is a hearsay witness and has not deposed anything related to the commission in her chief examination and in her cross examination by the defence counsel she admitted of FIR No. 132/2015 PS Adarsh Nagar State vs. Babloo Kumar page 3 of 15 knowing the accused prior to the incident being her tenant.
7. PW 3 Rahul is the owner of the shop at the place of the incident and he was declared as a hostile witness on the application of the prosecution. The said witness in his chief examination stated that the complainant came to him and told that someone has snatched her mobile phone and asked for a phone call which he refused. On cross examination by the prosecution he failed to identify the accused as he stated that did not see the accused committing any offence.
8. PW-4 W/HC Usha Rani is a former witness who stated that on 28.02.2015 she was working as DO and about 10:45am a call regarding robbery was received and she recorded the DD entry which is Ex. PW-4/A and handed over the same to ASI Raju Yadav who left for the spot. She further stated that same day around 10:45am Ct. Akhilesh handed over her Rukka sent by ASI Raju Yadav and on that basis she recorded the present FIR which Ex. PW-4/B and the endorsement on the Rukka is Ex.PW-4/C.
9. PW-5 Ct. Ram Dev is a formal witness who stated that on 01.03.2015 he had join the investigation in the present case and accordingly he along with ASI Raju Yadav went to Azadpur Flyover near Kewal Pak extension on information of one secret informer and secret informer pointed towards the said person and told that he is the same person. Thereafter, they all apprehended the said person and they formally searched the said person and found one mobile phone make Samsung (colour black and silver) from right pocket of FIR No. 132/2015 PS Adarsh Nagar State vs. Babloo Kumar page 4 of 15 his pant. the said mobile was seized vide seizure memo already Ex.PW-1/C bearing his signature at point B. The accused was apprehended vide memo already Ex. PW-1/B bearing his signature at point B. The case property was deposited at Malkhana. On cross examination by the defence counsel ,the witness admitted that the place from where the accused was arrested was a busy place and people were coming and going from there. No public person names and address were asked by the IO in his presence. He further stated that the distance between the place of arrest of accused and police station is about 100m. He failed to tell as to how the complainant PW-1 and her sister-in-law arrived at the spot. He failed to tell whether anything else was recovered from the possession of the accused except the mobile phone. He stated to have reached the PS only after 6;00 pm. He stated that he along with IO had left the PS for investigation in the present case only after 2:00-2:30PM. He admitted of not seen the secret informer.
10. PW-6 Ct. Akhilesh he is a formal witness who stated that on 28.02.2015 IO/ASI Raju Yadav received the DD No. 13A. After that he along with IO Raju Yadav and Lady Ct. Kusum reached at the spot where PW-1 Sanju Yadav was present along with her sister- in-law Manju Yadav PW-2. IO conducted the search regarding the whereabouts of accused Babloo Kumar but no clue was found. On cross examination by the defence counsel the witness admitted that the PCR call regarding the incident was received at about 7:00-7:30 am. They reached the spot within 10 min. At the FIR No. 132/2015 PS Adarsh Nagar State vs. Babloo Kumar page 5 of 15 time of the PCR call He was at the PS on emergency duty. Sanjay Yadav along with her sister-in-law Manju Yadav were present at the spot.
11. PW-7 W/Ct. Kalpana is a formal witness who stated that on 28.02.2015 with respect to PCR call form in question regarding a call made at the PCR control room at the about 9:03 am which is Ex.PW7/A. The said witness was not cross examined.
12. PW-8 W/Ct. Kusum is a formal witness and not eye witness to the incident.
13. PW-9 Ct. Vimal Kumar is a formal witness who was working as DD writer from 4:00Pm to 12:00 midnight PM and at about 5:05PM. He received information regarding apprehension of suspect in robbery. He entered the same at serial no. 42A of DD which is Ex.PW9/A.
14. PW-10 Smt. Kumarwati w/o Sh. Jaipal is a formal witness and not eyewitness or essential witness.
15. PW-11 SI Parveen Kumar is a former witness who is stated that on 01.03.2015 he was called by the IO at the spot. Where IO had apprehended one person namely Babloo Kumar. He took the formal search of the accused wherein one mobile phone make Samsung (colour black and silver) was recovered by the IO which was kept by the accused in his right side pocket of his wearing pent. IO kept the said mobile phone in the pullanda and sealed with the seal of RY. On cross examination by the defence counsel he admitted that he do not know as to who had given information FIR No. 132/2015 PS Adarsh Nagar State vs. Babloo Kumar page 6 of 15 regarding the apprehension of the accused to the IO.
16. PW-12 SI Raju is a IO who stated that on 28.02.2015 after receiving DD No. 13A he alongwith Ct. Akhiesh went to Gopal Nagar, where the complainant Sanju Yadav and her Bhabi Manju Met him. He recorded the statement of the complainant. He recorded the statements of PW Manju and eyewitness Virender. On 01.03.2015 he resumed the investigtion of the case vide DD no. 39B which is mark R1. He alongwith Ct. Ram Dev of PS Adarsh Nagar went to Azadpur flyover. One secret informer met him at Azadpur flyover. Meanwhile the complainant and PW Manju, also came there. He apprehended the accused Babloo at the instance of secret informer. The stolen mobile phone was recovered from the possession of the accused and the same was seized, and sealed with the seal of RY.
On cross-examination Ld. Counsel for accused admitted that complainant Sanju alongwith her bhabhi were present at the spot. Some public persons were also present at the spot. He had recorded the statement of one of the shopkeeper namely Rahul. The case property was recovered by him on 01.03.2015. He asked public witness to join the investigation but they did not agree and admitted that he did not issue notice to them.
17. Prosecution evidence was thereafter closed.
18. Statement of the accused was recorded u/s 313 Cr.PC on 02.11.2021, wherein all the incriminating evidence was put to the accused and he denied the same as incorrect and he stated that he is FIR No. 132/2015 PS Adarsh Nagar State vs. Babloo Kumar page 7 of 15 innocent. The complainant Sanju Yadav was his friend and her family was not happy with their friendship. Thus, the complainant under the influence of her family filed a false complaint against him. In defence the accused examined himself as DW-1 and stated on oath that the complainant had filed false case against him under the influence of her family as they ewer not happy with his friendship with the complainant.
19. Final Arguments heard on 01.04.2022. Case file perused.
20. Short point for determination before the court is as under -
"Whether on 28.02.2015 at around 8:00 am, near Grossary Store, Mandir vali Gali Gopal Nagar, Azadpur, Delhi within the jurisdiction of PS Adarsh Nagar, the accused robbed one mobile phone of complainant Smt. Sanju Yadav and for the said purpose slapped her and put her in fear of injuries to herself by committing the offence u/s 394 IPC and also on 01.03.2015 near Azadpur flyover the said mobile phone were recovered from possession of accused and thus he committed the offence of 411 IPC and voluntarily caused hurt to the complainant or not?"
21. It is argued by Ld. APP for the state that from the ocular and documentary evidence on record, prosecution has proved beyond reasonable doubt that the accused persons committed the present offence of robbery as they have been correctly identified by the complainant before court and also the accused was apprehended and the mobile phone of the complainant was recovered from the FIR No. 132/2015 PS Adarsh Nagar State vs. Babloo Kumar page 8 of 15 possession of accused and thus he submitted that accused person be convicted of the offence charged.
22. Per contra, it is argued by the Ld. Counsel for the accused that the accused person is completely innocent and the recovery of of the mobile phone has been planted upon the accused by the police. It is further submitted by Ld. Counsel that non joinder of public witness on seizure memo of the mobile phone in question despite availability cast shadow on prosecution story. It is further submitted that the complainant being known to the accused and being the friend of the accused has falsely implicated him in the present matter. At the end, submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt and therefore, the accused persons are liable to be acquitted of the alleged offence.
23. I have heard the rival submissions and have also carefully gone through the entire material available on record and evidence led on behalf of the prosecution. My findings on the point for determination and brief reasons for the same are now being discussed in following paragraphs.
24. In present case, prosecution was first duty bound to prove its case beyond reasonable doubt against the accused person.
25. In the present case, the testimony of the complainant who is the material witness does not inspire the confidence of this Court as admittedly the accused has previously resided in the house of the complainant as a tenant giving support to defence of accused that FIR No. 132/2015 PS Adarsh Nagar State vs. Babloo Kumar page 9 of 15 the complainant was in friendship with him. The story of the complainant that on 28.02.2015 the accused slapped her and took away his mobile phone does not appear trustworthy as on the complaint Ex.PW1/A the description of the mobile phone has no where being mentioned. The identity of the mobile phone i.e the stolen property has not been established by the prosecution. As per the seizure memo Ex.PW1/C the mobile phone recovered from the possession of accused as Samsung phone black and silver in color but there is no document on record showing that the mobile phone said to be recovered from the possession of accused actually belong to the complainant or his brother as alleged by the complainant. There is no bill of the mobile phone in question nor any photograph of the said mobile phone are placed on record despite the order of this court at the time of Supardari of mobile phone dated 28.04.2015 which directed to take coloured photograph of the phone from different angles. Further, the complainant vide her statement dated 28.08.2018 failed to produce the case property and stated that the same has been lost. The said circumstances creates doubt regarding the recovery of mobile phone from the accused. As per seizure memo the witness no.2 Manju Yadav examined as PW2 has not been questioned on the seizure memo Ex.PW1/C. Rather the entire testimony of Pw-2 is a hearsay evidence and is thus not admissible in evidence.
26. The testimony of PW-1 appears to be an interested witness and when considered in light of the defence of the accused that he FIR No. 132/2015 PS Adarsh Nagar State vs. Babloo Kumar page 10 of 15 was having friendly relation with the complainant and the family member of the complainant do not approve of the same. The only independent witness PW-3 Rahul the shopkeeper has also turned hostile during the trial and he has clearly stated that he did not witness the incident of robbery committed by the accused. There is no other witness to testify the fact of the accused slapping the complainant of the face and running away with the mobile phone in question. As discuss above, the recovery of the mobile phone from the possession of accused is also doubtful as no public witness was joined by the IO.
27. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), wherein, 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 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 FIR No. 132/2015 PS Adarsh Nagar State vs. Babloo Kumar page 11 of 15 investigation as a citizen, which is an offence under the IPC".
28. Similarly, in Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is observed as under:-
"that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".
29. Also, in State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court held as under:
"It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well-
FIR No. 132/2015 PS Adarsh Nagar State vs. Babloo Kumar page 12 of 15 settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions." [Emphasis supplied]
30. 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 substantiates the defence version that there is false implication of the accused in the present case and also in light of the fact that no recovery has been effected in the present matter. Further, considering facts and circumstances of the present case wherein the PW-5 and PW-12 admitted that there was public near the spot of arrest, there was no lack of time and opportunity to associate some independent witnesses with the search and strictly comply with the provisions of Code of Criminal Procedure. Hence, the above-mentioned facts create serious doubt on the case of the prosecution.
31. Also in view of fact no public witness was joined the testimony of police witness discussed above does not appears trustworthy or reliable. The PW-5 Ct Ramdev in his cross-
FIR No. 132/2015 PS Adarsh Nagar State vs. Babloo Kumar page 13 of 15 examination admitted that the police station is 100 metre away from spot of arrest. In that case this Court fails to understand as to how so much time was consumed by IO to arrest the accused as it was stated by PW-5 that they left PS around 2:30 pm on 01.03.2015. Also in chief examination PW-5 stated that they met secret informer on the spot of arrest and upon his pointing out they arrested the accused but in cross-examination the PW-5 stated to the contradictory that he did not see the secret informer. Thus, there are clear contradiction in his testimony. Also the case property to prove the seizure memo Ex.PW1/C was never put to the said witness. The testimony of PW-12 (IO) also does not appear reliable as he has failed to disclose how PW-1 and PW2 reached at the place of arrest of the accused and as to who informed them about the same. Further, the MLC of the complainant PW-1 on record does not talk about any fresh injury to support the story of the complainant that she was slapped many times by the accused. PW-1 the complainant being interested witness can not be relied upon solely to convict the accused without corroboration from any other independent witness which are missing in the present case.
32. From the aforesaid discussion, it is very clear that the manner in which the inquiry, seizure and search etc. has been conducted, it makes the prosecution version highly doubtful. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the FIR No. 132/2015 PS Adarsh Nagar State vs. Babloo Kumar page 14 of 15 prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
33. Therefore, in view of the discussions made herein above and the facts and circumstances of the present case, in my considered opinion, the prosecution has failed to prove the guilt of both the accused beyond reasonable doubt. Hence, accused persons namely stands acquitted of the offences under section 392/394/34 IPC they have been charged with. Ordered accordingly.
Announced in the open court (NEHA PANDEY) on 20.04.2022 MM-06/North/Rohini//20.04.2022
FIR No. 132/2015 PS Adarsh Nagar State vs. Babloo Kumar page 15 of 15