Delhi District Court
State vs . Kuldeep @ Rahul on 1 October, 2019
SC/216/18
State Vs. Kuldeep @ Rahul
IN THE COURT OF SHRI DEEPAK JAGOTRA,
DISTRICT & SESSIONS JUDGE, NORTH WEST DISTRICT,
ROHINI COURTS, DELHI
SC/216/18
CNR No.DLNW010036002018
State Versus Kuldeep @ Rahul
S/o Krishan Bihari
R/o House No.844, Gram Sabha,
Budh Vihar, Pooth Kalan, Delhi
FIR No.486/17
PS Rani Bagh
under Section 392/34 & 397 & 411 IPC
under Section 25/27 of the Arms Act
Date of institution of case : 06042018
Reserved for judgment on : 21082019
Date of passing of judgment : 01102019
JUDGMENT
1. This is a case filed on behalf of State whereby prosecution is seeking conviction of accused Kuldeep @ Rahul, who along with FIR No.486/17 PS Rani Bagh Page No. 1/25 under Section 392/34 & 397 & 411 IPC under Section 25/27 of the Arms Act SC/216/18 State Vs. Kuldeep @ Rahul his associate Babloo (since not arrested) in furtherance of their common intention had robbed one mobile phone make Samsung Duos from the possession of complainant Tinku for the offences punishable under Section 392/34 & 411 of the Indian Penal Code (hereinafter shall be referred as the "IPC") and for the offence punishable under Section 397 IPC as well as under Section 25/27 of the Arms Act as while committing robbery, accused Kuldeep @ Rahul had used a deadly weapon i.e. button actuated knife.
2. I have heard both the sides and meticulously gone through the record of the case.
3. Learned Additional Public Prosecutor for the State has submitted that the prosecution has successfully proved its case beyond a reasonable doubt against the accused and further prays that accused may be convicted for the offences charged against him.
4. On the other hand, it has been submitted on behalf of accused that he has been falsely implicated in this case and the FIR No.486/17 PS Rani Bagh Page No. 2/25 under Section 392/34 & 397 & 411 IPC under Section 25/27 of the Arms Act SC/216/18 State Vs. Kuldeep @ Rahul prosecution has miserably failed to prove its case beyond a reasonable doubt against the accused and further prays for the acquittal of the accused.
5. The facts of the case in concise format are that on 2912 2017 at about 12 noon on the Outer Ring Road heading towards Madhuban Chowk, near Deepali Chowk, accused Kuldeep @ Rahul along with his associate Babloo (since not arrested) in furtherance of their common intention had robbed one mobile phone make Samsung Duos from the possession of complainant Tinku and while committing robbery, accused Kuldeep @ Rahul had used a button actuated knife.
6. The detailed facts of the case shall be appreciated at the relevant stages of the judgment.
7. Before proceeding further, it would be appropriate to recapitulate the sequence of events which are as under;
The present case has been committed for trial and the charge sheet was received by the Court on 06042018. Charge was FIR No.486/17 PS Rani Bagh Page No. 3/25 under Section 392/34 & 397 & 411 IPC under Section 25/27 of the Arms Act SC/216/18 State Vs. Kuldeep @ Rahul framed against the accused in this case on 03052018 for the offences punishable under Section 392/397/411/34 IPC and under Section 25/27 of the Arms Act. The accused has pleaded not guilty and claimed trial for the offences charged against him.
8. In order to prove its case, the prosecution has examined as many as 6 witnesses.
9. Statement under Section 313 Cr.P.C. of accused was recorded on 26072019.
10. In his defence, no witness has been examined by the accused.
11. It is pointed out that the entire case shall be scrutinized and analyzed keeping an eye on the settled provisions of law and judicial precedents.
ANALYSIS OF THE PROSECUTION EVIDENCE OCCULAR EVIDENCE
12. PW1 Tinku, who is the complainant in his testimony before the Court has stated that at the time of incident, he was working FIR No.486/17 PS Rani Bagh Page No. 4/25 under Section 392/34 & 397 & 411 IPC under Section 25/27 of the Arms Act SC/216/18 State Vs. Kuldeep @ Rahul in Orbit Diagnostic Lab at Prashant Vihar and on 29122017, he was going to his office at Prashant Vihar in a DTC Bus. He has further stated that he had boarded the bus at Kali Mata Mandir and was taking ticket from the conductor and the bus was full with passengers. He has further stated that when the bus had reached at Deepali Chowk, one person hit him with his elbow and the second person took out his mobile phone make Samsung Duos from the left pocket of his pant. He has further stated that one person out of those persons had threatened him by saying "chaku maar dunga" and they alightened from the bus and he ran behind them by shouting "pakdo pakdo". He has further stated that 34 public persons managed to apprehend one person and the other person managed to escape from there. He has further stated that one police official was roaming there and knife and his mobile phone was recovered from the possession of the person, who was apprehended. He has further stated that the apprehended person along with knife was handed over to the police and he kept his FIR No.486/17 PS Rani Bagh Page No. 5/25 under Section 392/34 & 397 & 411 IPC under Section 25/27 of the Arms Act SC/216/18 State Vs. Kuldeep @ Rahul mobile phone with him. He has further stated that after one hour, he went to PS Rani Bagh and he handed over his mobile phone to the police and police recorded his statement Ex.PW1/A.
13. The complete testimony of this witness shall be discussed in the later part of the judgment.
IDENTIFICATION OF ACCUSED
14. As regards the identity of the accused, PW1 Tinku has stated that he is not 100% sure whether accused Kuldeep @ Rahul is the same person, who had robbed him.
RECOVERY OF CASE PROPERTY
15. PW1 Tinku has identified the knife which was used in the commissioning of offence as Ex.P1 and the mobile phone which was robbed from him as Ex.P2 in the Court.
DEPOSITION OF OTHER FORMAL PROSECUTION WITNESSES
16. Besides this witness, prosecution has also examined other formal witnesses to prove as follows;
FIR No.486/17 PS Rani Bagh Page No. 6/25 under Section 392/34 & 397 & 411 IPC under Section 25/27 of the Arms Act SC/216/18 State Vs. Kuldeep @ Rahul S.No. Name of witness To prove
1. PW2 ASI Prakash DD No.13A Ex.PW2/A, FIR Ex.PW2/B, Certificate under Section 65B of Indian Evidence Act Ex.PW2/C, endorsement on rukka Ex.PW2/D
2. PW3 Ct. Rakhi Proved Departure Entry vide DD No.15B as Ex.PW3/A
3. PW4 Ct. Pradeep Personal search memo of accused Ex.PW4/A, disclosure statement of accused Ex.PW4/B
4. PW5 HC Rakesh Entry No.1740/17 in Register No.19 Ex.PW5/A
5. PW6 SI Sandeep Rukka Ex.PW6/A, Site Plan Ex.PW6/B, list of previous cases against the accused Ex.PW6/C, Notification dt.17-02-1999 of Delhi Administration (Delhi) for Arms Act Ex.PW6/D CUMULATIVE EFFECT OF THE ENTIRE EVIDENCE
17. From the evidence, it is evinced that the incident with PW1 Tinku had happened inside a DTC bus on 29122017 when he had boarded the same at Kali Mata Mandir for going to his office at Prashant Vihar. The bus was full of passengers and when the bus reached at Deepali Chowk, someone hit him with his elbow and the second person stole his mobile phone make Samsung Duos from the left pocket of his pant. Taking an opportunity, both the assailants alighted from the DTC bus and started running. One of the assailants also threatened him by saying that he will stab him with knife. PW1 FIR No.486/17 PS Rani Bagh Page No. 7/25 under Section 392/34 & 397 & 411 IPC under Section 25/27 of the Arms Act SC/216/18 State Vs. Kuldeep @ Rahul Tinku started chasing them by shouting "pakdo pakdo". On this, 34 public persons managed to overpower one of the assailants whereas the other one succeeded in fleeing away. One knife along with the mobile phone were recovered from the person, who was apprehended with the help of public. Apprehended person along with the knife were handed over to the police. Police had recorded the statement of PW1 Tinku Ex.PW1/A.
18. Coming on to the core aspect of identification of accused Kuldeep @ Rahul, PW1 Tinku has pointed out towards Kuldeep @ Rahul in the dock and stated that he is the person, who was apprehended by the police on the day of incident and who had committed robbery of his mobile phone. At the same time, he had stated that he has identified him by his big lips. PW1 Tinku does not stop there and further says that "he is not 100% confirmed about the identity of the accused Kuldeep @ Rahul." He also does not remember as to who had shown him the knife and he could not tell FIR No.486/17 PS Rani Bagh Page No. 8/25 under Section 392/34 & 397 & 411 IPC under Section 25/27 of the Arms Act SC/216/18 State Vs. Kuldeep @ Rahul whether the accused in the dock had shown him the knife at the time of incident. He also does not remember as to which person out of the two, had taken out his mobile phone from his pocket and goes on to say that the person, who had shown him the knife had taken out his mobile phone from his pocket.
19. On this aspect, learned Additional Public Prosecutor for the State had cross examined the witness and he had denied the suggestion that the person, who was apprehended had taken out his mobile from his pocket and had shown him the knife. In his voluntary statement, PW1 Tinku had stated that the second person had shown him the knife and had taken out his mobile from his pocket and he might have run away after giving his mobile phone to the apprehended person. He also could not admit or deny the suggestion that he came to know the name of apprehended person as Kuldeep @ Rahul.
20. In the cross examination carried out by learned Additional Public Prosecutor for the State, he further reiterated that he is not FIR No.486/17 PS Rani Bagh Page No. 9/25 under Section 392/34 & 397 & 411 IPC under Section 25/27 of the Arms Act SC/216/18 State Vs. Kuldeep @ Rahul "100% confirmed" about the identity of accused Kuldeep as 78 months have passed and he has denied the suggestion that he is intentionally not 100% identifying accused Kuldeep. In his cross examination, he has further stated that he does not remember the face of the robber, who was apprehended on that day. He has further denied the suggestion that he fully remembers the face of the robber, who was apprehended at the spot or that he is intentionally not identifying the accused as the same robber. Further in the cross examination, it is stated by PW1 Tinku that he does not remember whether the accused present in the Court had shown him the knife on that day and denied the suggestion that he is deposing falsely regarding not remembering the fact of showing him of knife by accused (present in the Court) on that day. He was confronted with statement Ex.PW1/A from portion A to A1, B to B1 and C to C1 where it was so recorded.
21. In the cross examination carried out on behalf of accused, FIR No.486/17 PS Rani Bagh Page No. 10/25 under Section 392/34 & 397 & 411 IPC under Section 25/27 of the Arms Act SC/216/18 State Vs. Kuldeep @ Rahul he has further reiterated that he is only identifying the accused by seeing his lips and he does not remember the face of the robbers.
22. The witness was cross examined by learned counsel for accused and from the cross examination carried out by learned counsel for the accused, it is elicited that "In his presence, police did not prepare any document. Police did not take him to the place of incident. He has admitted that IO obtained his signatures on the documents however the contents of the same were not read over to him by the police. IO also did not read over his statement Ex.PW1/A to him before obtaining his signature at point A. He has denied the suggestions that the lips of the accused are normal or that they are not big as stated by him. It is further elicited that he only identified the accused by seeing his lips and he does not remember the face of the robbers."
23. On close scrutiny of the statement of star witness of the prosecution, it clearly emerges that initially, the accused was clearly FIR No.486/17 PS Rani Bagh Page No. 11/25 under Section 392/34 & 397 & 411 IPC under Section 25/27 of the Arms Act SC/216/18 State Vs. Kuldeep @ Rahul identified by him but as the examination in chief progressed, the witness took a U Turn and marked a huge dent as far as the identification of the accused is concerned. He has clearly stated that he is not absolutely sure that accused in the dock was the same person who had shown him the knife or took out his mobile phone.
24. In order to salvage the case of the prosecution, learned Additional Public Prosecutor for the State at length had cross examined the witness but nothing fruitful came out in its favour especially on the point of identification of the accused. PW1 Tinku at best is identifying the accused by his big lips and not by face. Identifying the accused solely on the basis of big lips is certainly a precarious situation for the prosecution. Identifying the accused on such basis is not at all justified in the eyes of law.
25. The entire case of the prosecution rests on the sole statement of PW1 Tinku. In this regard, in a judgment titled as Alagupandi vs. State of Tamilnadu reported in AIR 2012 SC 2405, FIR No.486/17 PS Rani Bagh Page No. 12/25 under Section 392/34 & 397 & 411 IPC under Section 25/27 of the Arms Act SC/216/18 State Vs. Kuldeep @ Rahul the Apex Court has observed that : "In the case of Govindaraju @ Govinda vs State of Sriramapuram P.S. and Anr., (Crl. Appeal No. 984 of 2007 decided on March 15, 2012), this Court held as under :
11. Now, we come to the second submission raised on behalf of the Appellant that the material witness has not been examined and the reliance cannot be placed upon the sole testimony of the police witness (eyewitness). It is a settled proposition of law of evidence that it is not the number of witnesses that matters but it is the substance. It is also not necessary to examine a large number of witnesses if the prosecution can bring home the guilt of the accused even with a limited number of witnesses. In the case of Lallu Manjhi and Anr. vs. State of Jharkhand MANU/SC/0004/2003 : (2003) FIR No.486/17 PS Rani Bagh Page No. 13/25 under Section 392/34 & 397 & 411 IPC under Section 25/27 of the Arms Act SC/216/18 State Vs. Kuldeep @ Rahul 2 SCC 401, this Court had classified the oral testimony of the witnesses into three categories :
a. Wholly reliable;
b. Wholly unreliable; and c. Neither wholly reliable nor wholly unreliable
12. In the third category of witnesses, the Court has to be cautious and see if the statement of such witness is corroborated, either by the other witnesses or by other documentary or expert evidence. Equally well settled is the proposition of law that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence otherwise recorded. The evidence of a sole witness should be cogent, reliable and must essentially fit into the chain of events that have been stated by the FIR No.486/17 PS Rani Bagh Page No. 14/25 under Section 392/34 & 397 & 411 IPC under Section 25/27 of the Arms Act SC/216/18 State Vs. Kuldeep @ Rahul prosecution. When the prosecution relies upon the testimony of a sole eyewitness, then such evidence has to be wholly reliable and trustworthy. Presence of such witness at the occurrence should not be doubtful. If the evidence of the sole witness is in conflict with the other witnesses, it may not be safe to make such a statement as a foundation of the conviction of the accused. These are the few principles which the Court has stated consistently and with certainty. Reference in this regard can be made to the cases of Joseph Vs. State of Kerala, MANU/SC/1084/2002: (2003) 1 SCC 465 and Tika Ram vs. State of Madhya Pradesh (2007) 15 SCC
760. Even in the case of Jhapsa Kabari and Ors.
Vs State of Bihar MANU/SC/0776/2001 : (2001) 10 SCC 94, this Court took the view that if the presence of a witness is doubtful, it becomes a case FIR No.486/17 PS Rani Bagh Page No. 15/25 under Section 392/34 & 397 & 411 IPC under Section 25/27 of the Arms Act SC/216/18 State Vs. Kuldeep @ Rahul of conviction based on the testimony of a solitary witness. There is, however, no bar in basing the conviction on the testimony of a solitary witness so long as the said witness is reliable and trustworthy."
26. It is a settled law that identity of the accused is the most crucial factor in the decision of a criminal trial. Any dent made in this regard by the prosecution proves fatal. One of the main pillars of the proof of the prosecution case stands on the identification of the accused which should be clear, cogent and trustworthy. Any discrepancy made in this regard makes the case of the prosecution unbelievable and unreliable.
27. In the present case, complainant PW1 Tinku has clearly stated that he is not absolutely sure about the identity of the accused and he does not remember the face of the robbers and he can only identify the accused by seeing his lips. Merely by identifying the lips FIR No.486/17 PS Rani Bagh Page No. 16/25 under Section 392/34 & 397 & 411 IPC under Section 25/27 of the Arms Act SC/216/18 State Vs. Kuldeep @ Rahul and on that basis identifying the accused in the dock is not at all enough in the eyes of law to have roped in the accused. The entire statement made by PW1 Tinku in this regard is contradictory and self damaging one. In the cross examination also, he is not sure which out of the two accused had snatched his mobile phone and shown him the knife. Moreover in the cross examination in his voluntary statement, he goes to say that the second person was the one, who had shown the knife and taken out his mobile phone from his pocket. In such anomalous situation, it is not at all safe to fasten the guilt on the present accused.
28. Coming on to the aspect of knife, PW1 Tinku in his examination in chief had stated that the apprehended person along with knife were handed over to the police and at the same time, in the cross examination carried out by learned Additional Public Prosecutor for the State, he had stated that Ct. Pradeep had taken the search of apprehended person and his mobile phone was recovered from the left FIR No.486/17 PS Rani Bagh Page No. 17/25 under Section 392/34 & 397 & 411 IPC under Section 25/27 of the Arms Act SC/216/18 State Vs. Kuldeep @ Rahul side pocket and buttondar knife was recovered from his left dub.
29. On this aspect, PW4 Ct. Pradeep had stated in his testimony that he took formal search of accused Kuldeep and one mobile phone of Tinku was recovered from the left side pocket of pant of accused Kuldeep. One "buttondar" knife was recovered from the left side dub of pant of accused Kuldeep. Whereas PW6 SI Sandeep, IO of the case on this aspect had stated that complainant Tinku also produced one buttondar knife in open condition along with his robbed mobile phone recovered from the accused. In the cross examination, he also reiterated this fact that the complainant himself had produced the knife as well as the said mobile phone before him.
30. If we put the statements of PW1 Tinku and PW6 SI Sandeep juxtaposed the statement of PW4 Ct. Pradeep, there is complete mismatch between the two sides.
31. As far as star witness PW1 Tinku is concerned, he on one hand says that knife along with the accused was handed over to the FIR No.486/17 PS Rani Bagh Page No. 18/25 under Section 392/34 & 397 & 411 IPC under Section 25/27 of the Arms Act SC/216/18 State Vs. Kuldeep @ Rahul police by him whereas in the cross examination, he says that Ct. Pradeep had taken out the buttondar knife from the left dub of the apprehended person. The statement made by PW4 Ct. Pradeep is absolutely contradictory to what has been deposed by PW1 Tinku and PW6 SI Sandeep on the aspect of handing over the mobile phone and the knife.
32. In view of the contradictory deposition made by PW1 Tinku, PW4 Ct. Pradeep and PW6 SI Sandeep, it cannot be said that recovery of the mobile phone and the knife is free from doubt. As a matter of fact, the recovery shown by the prosecution becomes highly doubtful and cannot be said beyond doubt that same were recovered from the possession of the accused. Even the statement of police witnesses i.e. PW4 Ct. Pradeep and PW6 SI Sandeep are not matching with each other rather they are contradictory to one another.
33. It is a settled law that once the identity of the accused becomes doubtful for connecting the accused with the crime, it would FIR No.486/17 PS Rani Bagh Page No. 19/25 under Section 392/34 & 397 & 411 IPC under Section 25/27 of the Arms Act SC/216/18 State Vs. Kuldeep @ Rahul not at all be justifiable to fasten the accused with the crime alleged against him. Thus, there is absolute disconnect between the accused and the crime for which he was charged against. In Raj Kumar Singh vs. State of Rajasthan (2013) 5 SCC 722, it has been held that: "Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be"
proved and "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. FIR No.486/17 PS Rani Bagh Page No. 20/25 under Section 392/34 & 397 & 411 IPC under Section 25/27 of the Arms Act SC/216/18 State Vs. Kuldeep @ Rahul The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so FIR No.486/17 PS Rani Bagh Page No. 21/25 under Section 392/34 & 397 & 411 IPC under Section 25/27 of the Arms Act SC/216/18 State Vs. Kuldeep @ Rahul demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."
34. In the present case where the independent witness has not at all supported the case of the prosecution regarding identification of the accused, the statements made by police witnesses PW4 Ct.Pradeep and PW6 SI Sandeep though have supported the case of the prosecution as regards the identity of the accused Kuldeep @ Rahul is concerned, are of no help to the case of the prosecution in any manner whatsoever.
35. As regards the case of the prosecution under Section 25/27 of the Arms Act against the accused, PW1 Tinku in his statement has stated that "The knife and my mobile phone were recovered from the apprehended person. The apprehended person FIR No.486/17 PS Rani Bagh Page No. 22/25 under Section 392/34 & 397 & 411 IPC under Section 25/27 of the Arms Act SC/216/18 State Vs. Kuldeep @ Rahul along with knife was handed over to the police. In the same statement, he has further stated that "I do not remember who had shown me the knife so I cannot tell whether the accused, present in the Court today, had shown me the knife or not at the time of accident." In his statement, PW1 Tinku has correctly identified the knife as the same knife which was shown to him by the robber at the time of incident and identified the same as Ex.P1.
36. Thus, as far as recovery of button actuated knife is concerned, it is not at all proved if the same was recovered from the possession of the accused. As a matter of fact, PW1 Tinku himself says that he was the one, who had handed over the knife to the police along with the apprehended person and in the same breath he says that "it was the second person, who had shown him the knife and he might have run away." Moreover, PW4 Ct. Pradeep says that he took the search of the apprehended person and found the knife from the possession of the apprehended person whereas PW6 SI Sandeep says FIR No.486/17 PS Rani Bagh Page No. 23/25 under Section 392/34 & 397 & 411 IPC under Section 25/27 of the Arms Act SC/216/18 State Vs. Kuldeep @ Rahul that complainant Tinku had produced the button actuated knife in open condition.
37. In view of the clear contradictory statements of the witnesses, it is not at all safe to return a finding that a button actuated knife was recovered from the possession of the accused. It is incumbent on the part of the witnesses of the prosecution to state clearly as to the exact manner in which the knife was recovered. Any mismatch in their statements makes the recovery of the weapon of offence highly doubtful. Hence, charge under Section 25/27 of the Arms Act against the accused could not be proved.
38. Keeping in view the fact that the prosecution has completely failed to connect the accused as well as weapon of offence with the crime alleged against the accused beyond a reasonable doubt, the accused is entitled to get the benefit of doubt. Hence, the case putforth by the prosecution against the accused must fail and fall down.
FIR No.486/17 PS Rani Bagh Page No. 24/25 under Section 392/34 & 397 & 411 IPC under Section 25/27 of the Arms Act SC/216/18 State Vs. Kuldeep @ Rahul CONCLUSION
39. Keeping in view the totality of the facts and circumstances of the case, the entire case of the prosecution crumbles down. The prosecution has completely failed to bring home the charge against accused Kuldeep @ Rahul. Accused Kuldeep @ Rahul stands acquitted. His Bail Bond is cancelled and surety is discharged.
40. Kuldeep @ Rahul is directed to furnish fresh Bail Bond in the sum of Rs.10,000/ (Ten Thousand) with one surety in the like amount which shall remain in force for a period of six months in pursuance of Section 437(A) Code of Criminal Procedure.
41. File be consigned to Record Room.
Digitally
ANNOUNCED IN THE OPEN COURT signed by
ON 01st OCTOBER, 2019 DEEPAK
DEEPAK JAGOTRA
JAGOTRA Date:
2019.10.01
14:11:32
+0530
(DEEPAK JAGOTRA)
DISTRICT & SESSIONS JUDGE
NORTH WEST DISTRICT
ROHINI COURTS, DELHI
FIR No.486/17
PS Rani Bagh Page No. 25/25
under Section 392/34 & 397 & 411 IPC
under Section 25/27 of the Arms Act