Delhi District Court
State vs . Karan @ Monu on 6 March, 2023
IN THE COURT OF MS MANSI MALIK,
METROPOLITAN MAGISTRATE03, NORTH WEST,
ROHINI COURTS, DELHI
Cr. Case No. 3963/2022
FIR No.: 144/2022
P.S. : North Rohini
State vs. Karan @ Monu
U/s. 392/394/411/34 IPC and 103 D.P. Act.
State
v.
1. Karan @ Monu, S/o Dharampal
R/o House no. N972, Mangolpuri, Outer District, Delhi
2. Anoop Singh @ Anoop Negi, S/o Sh. Chander Singh
R/o House no. B4, Rajiv Nagar Extn, Begumpur, Delhi.
Date of institution of case : 31.03.2022
Date of reserving the judgment : 22.02.2023
Date of pronouncement of judgment : 06.03.2023
JUDGMENT
1. S. No. of the Case: 3963/2022
2. Date of Commission of Offence: 29.01.2022
3. Date of institution of the case: 31.03.2022
4. Name of the complainant: Sh. Deepak
5. Name of the accused: 1. Karan @ Monu
2. Anoop Singh @ Anoop Negi
6. Offence complained or proved: 392/394/411/34 IPC & 103 DP
Act
Digitally
signed by
MANSI
MANSI MALIK
FIR no. 144/2022 State Vs. Karan @ Monu & Ors. PS North Rohini Page no.1/21
MALIK Date:
2023.03.06
17:13:54
+0530
7. Plea of Accused: "Not Guilty"
8. Final Order: (1) Accused Karan @ Monu convicted
u/s 394 IPC and acquitted u/s 411
IPC and 103 DP Act
(2) Accused Anoop Singh acquitted
9. Date of Final Order: 06.03.2023
BRIEF FACTS AND REASONS FOR DECISION
1. Succinctly, the case of prosecution is that the accused persons namely Karan @ Monu and Anoop Singh @ Anoop Negi have been sent to face trial with the allegations that on 29.01.2022 at about 11:45 AM on C9, near Jain Mandir Sec8, Rohini, Delhi within the jurisdiction of PS North Rohini, both the accused while acting in furtherance of their common intention wrongfully restrained the way of the complainant Sh. Deepak and voluntarily caused hurt to him in committing the robbery of his mobile phone make of MI Note03 and alternatively on the aforesaid date, time and place both the accused were found in possession of aforesaid robbed mobile phone make MI Note 03 which they dishonestly received or retained despite knowing or having reason to believe that the same is a stolen property. Secondly on the aforesaid date, time near Ganda Nala Rithala, Delhi both accused in furtherance of their common intention were found in illegal possession of seven mobile phones which there was reason to believe were stolen property and were fraudulently obtained and both accused failed to account for their possession. Investigation was carried out. Upon completion of the investigation the instant chargesheet for the offence punishable under Section 392/394/411/34 IPC and 103 D.P. Digitally signed by MANSI MANSI Date:
MALIK MALIK 2023.03.06 FIR no. 144/2022 State Vs. Karan @ Monu & Ors. PS North Rohini Page no.2/21 17:14:03 +0530 Act was filed by the investigating officer against the accused persons. The accused persons were thereafter summoned by the undersigned.
2. The copy of charge sheet and relevant documents was supplied to the accused persons in compliance of Section 207 of Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.PC).
3. Prima facie case was made out and charge for offences punishable under Section 392/394/411/34 IPC and 103 D.P. Act was framed against accused Karan @ Monu and Anoop Singh @ Anoop Negi on 06.05.2022 to which they pleaded not guilty and claimed trial. Thereafter, the matter was fixed for recording of prosecution evidence.
4. In order to substantiate the allegations, the prosecution examined six witnesses. At the onset it would be appropriate to have glance at the gist of deposition made by the witnesses:
5. PW1 Sh. Deepak Kohli deposed that on 29.01.2022 at about 11:45am, he was going towards Gurudwara at C7, Sec8 Rohini, Delhi and reached near C9, Jain Mandir sec8 Rohini, Delhi and suddenly, 2 boys came there on motorcycle and stopped his motorcycle. PW1 further deposed that one person alighted from the aforesaid motorcycle and came to him and thereafter, he pushed him and he fell down on the road and he snatched away his mobile phone make of MI note 3. PW1 further deposed that the aforesaid boys tried to run away from the spot and he raised the alarm, some public person Digitally signed by MANSI MANSI Date:
MALIK MALIK 2023.03.06 17:14:10 +0530 FIR no. 144/2022 State Vs. Karan @ Monu & Ors. PS North Rohini Page no.3/21 apprehended both the accused persons. PW1 further stated that accused Karan @ Monu had robbed and snatched away his aforesaid mobile phone and public persons gave beating to both the accused persons and his aforesaid mobile phone was recovered from the possession of the accused Karan @ Monu. PW1 further deposed that he lodged his complaint against the aforesaid incident which is Ex. PW1/A and IO prepared the site plan on his instance which is Ex. PW1/B. PW1 further deposed that IO had seized his mobile phone vide seizure memo Ex. PW1/C and IO had also seized motor cycle recovered from the possession of the accused vide seizure memo Ex. PW1/D. PW1 further deposed that during investigation, he have handed over copy of bill/ invoice of his aforesaid mobile phone which is Mark A. PW1 further deposed that he did not remember anything else regarding the present case and that he can not identify the rider of the motor cycle and he can only identify the pillion rider who came to him and robbed his mobile phone ie. Accused Karan @ Monu @ Arjun. PW1 correctly identified the case property. PW1 was cross examined by Ld. APP for the state with the permission of the Court.PW1 was also cross examined by Ld. LAC for accused Karan @ Monu. PW1 was not cross examined by Ld. Counsel for accused Anoop Singh @ Anoop Negi.
6. PW2/Rajender deposed that he was running a Chawla Gas service shop near sub station, 4/8, Sec8, Rohini, Delhi, opposite C8/273 and on 30.01.2022 at about 11:45 PM, he was present at his aforesaid shop and he heard some noise "pakdo pakdo" and thereafter, he went at the aforesaid site from where the noise was coming and found one person was holding a motorcycle from backside on which two boys were sitting who were trying to FIR no. 144/2022 State Vs. Karan @ Monu & Ors. PS North Rohini Page no.4/21 Digitally signed by MANSI MANSI MALIK MALIK Date:
2023.03.06 17:14:18 +0530 flee from there. PW2 further deposed that some public persons also gathered at the spot and they apprehended the aforesaid boys and police officials also reached at the spot. PW2 further deposed that he do not remember anything else regarding the present case and he cannot identify any of the boy who were given beatings on that day and apprehended by the public persons as he have not seen their faces as they were surrounded by the crowd. PW2 was cross examined by Ld. APP for the state with permission of the Court. PW1 was also examined by Ld. Counsels for accused persons.
7. PW3 HC Anil Kumar deposed that on 29.01.2022, he was posted at PS North Rohini as constable and on that day, he was on patrolling duty and at about 11:45 AM, when he reached at Block C9, near Jain Mandir, Sec8, Rohini, Delhi he heard some noise. PW3 further deposed that he rushed to the spot and found public gathering and they were beating the accused persons and the name of the accused persons were revealed to him as Karan @ Monu @ Arjun and Anoop Singh @ Anoop Negi. PW3 further deposed that he also met with the complainant Sh. Deepak Kohli and he told him that both the accused persons have robbed his mobile phone and while fleeing from the spot, they were apprehended by him and public persons and given beatings by the public persons. PW3 further deposed that both the accused persons alongwith the complainant Deepak Kohli were brought to the PS and IO recorded statement of complainant Sh. Deepak Kohli and got the present case registered. PW3 further deposed that IO seized the motorcycle which is already Ex. PW1/D and also seized the robbed mobile of the complainant vide seizure memo Ex. PW1/C. PW3 further deposed that IO alongwith Deepak Kohli went to the spot and after some time they returned back to the FIR no. 144/2022 State Vs. Karan @ Monu & Ors. PS North Rohini Page no.5/21 Digitally signed by MANSI MANSI MALIK MALIK Date:
2023.03.06 17:14:25 +0530 PS and IO arrested both the accused persons vide arrest and personal search memo Ex. PW3/A1 to Ex. PW3/A4. PW3 further deposed that IO had also recorded disclosure statement of accused persons Ex. PW3/B1 and Ex. PW 3/B2 and thereafter both the accused persons led them to Ganda Nala, Rithala and got recovered one motorcycle, which they had stolen from Dr. B.S.A. Hospital. PW3 further deposed that IO seized the aforesaid motorcycle vide seizure memo Ex. PW3/C and thereafter both the accused persons got recovered one plastic polythene in which seven mobile phones were recovered and are seized vide seizure memo Ex. PW3/D1 and Ex. PW3/D2. PW3 further deposed that IO prepared site plan of the place of the recovery Ex. PW3/E and thereafter they returned back to the PS and he alongwith Ct. Jal Singh got conducted the medical examination of the accused persons. PW3 further deposed that IO recorded his statement. PW3 has correctly identified the accused persons and the case property. PW3 was crossexamined by Ld. Counsels for accused persons.
8. PW4 SI Sanjeev Kumar deposed that on 29.01.2022, he was posted at PS North Rohini as SI and on that day, Ct. Anil brought both the accused persons alongwith the complainant Deepak Kohli to the PS and thereafter, complainant Deepak Kohli left the PS as he has to attend some rituals/last rites as his mother has already been expired. In the evening, complainant Deepak Kohli came to the PS and lodge his complainant regarding the complaint regarding the incident and the complainant is Ex. PW1/A and he prepared rukka which is Ex. PW4/A and handed over the same to DO for registration of the case and he left for the spot alongwith the complainant Deepak Kohli where he prepared site plan on his instance and same is Ex. PW1/B. PW4 FIR no. 144/2022 State Vs. Karan @ Monu & Ors. PS North Rohini Page no.6/21 further deposed that one eye witness of the incident in question namely Rajender was also met with us at the spot and he served notice u/s 160 Cr.P.C.
to the aforesaid Rajender and thereafter, they returned back to the PS and medical examination of the complainant was got conducted through Ct. Anil in the B.S.A. Hospital vide MLC No. 1253 dated 29.01.2022 which is Ex. PW4/B. PW4 further deposed that he seized the motorcycle used by the accused persons at the time of alleged incident which is Ex. PW1/D and also seized the robbed mobile of the complainant vide seizure memo Ex. PW1/C and thereafter he arrested both the accused persons vide arrest and personal search memo already Ex. PW3/A1 to Ex. PW3/A4. PW4 further deposed that he had also recorded disclosure statement of accused persons and same are Ex. PW3/B1 and Ex. PW3/B2. PW3 further deposed that thereafter both the accused persons led us to Ganda Nala, Rithala and got recovered one motorcycle which they had stolen from Dr. B.S.A. Hospital and he seized the aforesaid motorcycle vide seizure memo Ex. PW3/C. PW4 further deposed that both the accused persons got recovered one plastic polythene in which seven mobile phones were recovered and are seized vide seizure memo Ex. PW3/D1 and Ex. PW3/D2 and he prepared site plan of the place of the recovery which is Ex. PW3/E. PW4 further deposed that they returned back to the PS and he got conducted the medical examination of the accused persons and he recorded statement of witnesses and accused persons were produced before the concerned court from where they were sent to JC. PW4 further deposed that on 30.01.2022, eye witness namely Sh. Rajender came to the PS North Rohini and he recorded his statement u/s 161 Cr.P.C. PW4 has correctly identified the accused persons and the case property. PW4 was crossexamined by Ld. Counsels for accused persons.
Digitally signed by FIR no. 144/2022 State Vs. Karan @ Monu & Ors. PS North Rohini Page no.7/21 MANSI MANSI MALIK MALIK Date:
2023.03.06 17:14:32 +0530
9. PW5 Dr. Satish Kumar Singh deposed that he was working at Dr.BSA Hosptal since 2015 and he has work with Dr. Chittaranjan Kumar, CMO and Dr.DipJyoti, JR ,casualty and he was very much acquainted with the handwriting and signature of aforesaid doctors. PW5 further deposed that on 29.01.2022 at about 5:33Pm one patient namely Deepak Kohli was brought to casualty by Ct.Anil the aforesaid patient was examined by the Dr. DipJyoti under the supervision of Dr. Chittaranjan Kumar vide MLC no.1253, E no.18189 which is Ex.PW4/B bearing signature of Dr. DipJyoti at point A and signature of Dr. Chittaranjan Kumar at point B. PW5 further deposed that the nature of injury was opined as simple at point X by Dr.DipJyoti. PW5 was crossexamined by Ld. Counsels for the accused persons.
10. PW 6 SI Naveen Kumar deposed that on 21.03.2022 he was posted at SI in PS North Rohini and on that day he received the present case file for further investigation. PW6 further deposed that during investigation on 27.03.2022, complainant Deepak Kohli came to PS North Rohini and handed over copy of bill of his robbed mobile phone which is Mark C and recorded the statement of Deepak Kohli u/s161 Cr.PC. After completion of the investigation he has prepared the chargesheet and filed the same before the Hon'ble Court. PW6 was cross examined by Ld. Counsels for the accused persons.
11. The accused persons also admitted the genuineness of FIR No. 144/22 PS North Rohini, Certificate u/s 65B of the Indian Evidence Act and entries in register no. 19 regarding the present case u/s 294 Cr.PC, without admitting FIR no. 144/2022 State Vs. Karan @ Monu & Ors. PS North Rohini Page no.8/21 Digitally signed by MANSI MANSI MALIK MALIK Date:
2023.03.06 17:14:39 +0530 the contents of the same. In view of the above, witnesses mentioned at serial no. 3 and 7 in the list of prosecution witnesses were dropped. Ld. APP for the state submitted that there is no need to examine PW/Ct. Jal Singh in the present matter. Accordingly, he was dropped from the list of witnesses. Prosecution evidence was thereafter closed on 20.01.2023. It was followed by recording of statement of the accused persons u/s 313 Cr.PC. All the incriminating evidence was put to accused persons to which they pleaded innocence and false implication. Accused persons did not wish lead to DE.
12. The Court has carefully perused the case record and has heard arguments advanced by Ld. APP for the state as well as by Ld. Defence counsel.
13. Short point for determination before the court is as under "Whether on 29.01.2022 at about 11:45 AM on C9, near Jain Mandir Sec8, Rohini, Delhi within the jurisdiction of PS North Rohini, both the accused while acting in furtherance of their common intention wrongfully restrained the way of the complainant Sh. Deepak and voluntarily caused hurt to him in committing the robbery of his mobile phone make of MI Note03 and alternatively on the aforesaid date, time and place both accused were found in possession of aforesaid robbed mobile phone make MI Note 03 which they dishonestly received or retained despite knowing or having reason to believe that the same is a stolen property. Secondly on the aforesaid date, time near Ganda Nala Rithala, Delhi both accused in furtherance of their common intention FIR no. 144/2022 State Vs. Karan @ Monu & Ors. PS North Rohini Page no.9/21 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2023.03.06 17:14:46 +0530 were found in illegal possession of seven mobile phone and which there was reason to believe were stolen property and fraudulently obtained and both accused failed to account for their possession?"
14. 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 wrongfully restrained the way of the complainant and voluntarily caused hurt to him in committing robbery of his mobile phone. It was further submitted that even if the aforesaid offence of robbery with hurt is not proved, the prosecution has proved beyond reasonable doubt that the accused persons were found in possession of the stolen mobile phone of the complainant and submitted that the accused persons be convicted of the offence charged. It is also argued that in addition to the aforesaid the accused persons were found in illegal possession of seven mobile phones, which there was reason to believe were stolen property for which the accused persons did not provide any justification and hence they are also liable u/s 103 DP Act.
15. Per contra, it is argued by the Ld. LAC for the accused persons that the complainant has failed to identify the accused Anoop in his testimony. Further, the other public witness, Sh. Rajender, who has deposed, as PW2 has also not identified the accused persons. It is further submitted that the accused persons are completely innocent and recovery of case property has been falsely implanted upon them. It is further submitted by Ld. Counsel that non joinder of any public witness despite availability cast shadow of doubt on Digitally signed by MANSI MANSI MALIK MALIK Date:
2023.03.06 17:14:52 +0530 FIR no. 144/2022 State Vs. Karan @ Monu & Ors. PS North Rohini Page no.10/21 prosecution story. At the end, it is 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 offences.
16. 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.
17. In the present case, PW1 is the complainant/victim. In his testimony, PW1 deposed about the incident in question, he stated that on 29.01.2022, he was going towards the Gurudwara at C7, Sector8, Rohini and suddenly 2 boys came there on motorcycle and stopped their motorcycle. It is further stated that one person alighted from the motorcycle and pushed him and snatched away his mobile phone. Thereafter, they tried to run away but public persons apprehended them. The complainant correctly identified accused Karan @ Monu and stated that he had robbed and snatched away his mobile phone. However, the witness failed to identify the accused Anoop Singh. He sated that he cannot identify the rider of the motorcycle and can only identify the pillion rider who came to him and snatched his phone. Therefore, he was crossexamined by Ld. APP on the point of identity of accused Anoop Singh, but even after his crossexamination by Ld. APP, he failed to identify the accused Anoop Singh. Moreover, the other eyewitness to the incident who has been examined as PW2/Sh. Rajender also failed to identify both the accused persons as he deposed that he had not seen their faces on the date of incident as they were surrounded by crowd. Therefore, he was crossexamined Digitally signed by MANSI Date:
MANSI MALIK MALIK 2023.03.06 17:14:59 +0530 FIR no. 144/2022 State Vs. Karan @ Monu & Ors. PS North Rohini Page no.11/21 by Ld. APP on the point of identity of both the accused persons, but even after his crossexamination by Ld. APP, he failed to identify the accused persons. No other eyewitness, except PW1 and PW2 were examined on behalf of prosecution to establish the identity of accused persons as perpetrator of offence of robbery with hurt alleged to be committed qua the complainant. The identity of accused person is the most vital aspect of any criminal trial. The testimony of complainant/eyewitness was therefore necessary for conviction of accused persons with respect to the offence u/s 392/394 IPC. It is the complainant or the eyewitness only who could have deposed regarding the involvement of the accused in the commission of alleged offence. Since the complainant/PW1 as well as the eye witness/PW2 have failed to identify the accused Anoop Singh as perpetrator of the offence, the offence u/s 392/394 IPC cannot be proved by the prosecution qua accused Anoop Singh.
18. With respect to the offence u/s 392/394 IPC qua accused Karan @ Monu, it is observed that PW1/complainant in his testimony has correctly identified the accused Karan @ Monu and therefore qua him the evidence on record requires to be appreciated. As 394 IPC is the major offence out of the two, it first needs to be discussed. In order for an offence to be made out u/s 394 IPC, it is necessary for the prosecution to prove that firstly, the accused committed robbery and secondly, that hurt was caused to the complainant while the act of robbery was being carried out.
19. In the instant case, the complainant has clearly deposed that two Digitally signed MANSI by MANSI MALIK MALIK Date:
2023.03.06 17:15:05 +0530 FIR no. 144/2022 State Vs. Karan @ Monu & Ors. PS North Rohini Page no.12/21 persons stopped his motorcycle and the accused Karan @ Monu alighted from the motorcycle and pushed him and snatched away his mobile phone. Section 390 IPC defines robbery. As per Section 390 IPC, in all robbery there is either theft or extortion. Further, the said section also states that theft is robbery when 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. In the case at hand, it is quite clear from the testimony of PW1/complainant that the accused Karan @ Monu pushed the complainant due to which he fell down on the road and thereafter the said accused snatched away his mobile phone. Therefore, all the ingredients of robbery as mentioned u/s 390 IPC are fulfilled as hurt was caused by pushing the victim while committing theft of his mobile phone.
20. Secondly, for an offence u/s 394 IPC to be made out, it is necessary that hurt be caused to the complainant while the act of robbery was being carried out. A perusal of the record shows that the MLC of the complainant was conducted on 29.01.2022 i.e. on the same date as the date of the incident. The said MLC is Ex. PW4/B and the same has been proved by PW5/Dr. Satish Kumar Singh. PW5 has correctly identified the signatures of both the doctors on the said MLC and nothing substantial has been elicited from him in his testimony. A perusal of the MLC shows that mild abrasions were caused to the complainant and the nature of injury has been opined to be simple. Therefore, hurt has been caused to the complainant in the act of robbery thereby satisfying the ingredients of Section 394 IPC.
Digitally signed by MANSI MANSI MALIK MALIK Date:
2023.03.06 FIR no. 144/2022 State Vs. Karan @ Monu & Ors. PS North Rohini Page no.13/21 17:15:10 +0530
21. It is submitted by the Ld. LAC for the accused that the other public witness i.e. PW2/Sh. Rajinder has not supported the prosecution version and hence doubt exists on the version of the prosecution. A perusal of the testimony of PW2 shows that he has deposed that on 30.01.2022, he heard noise and when he went to the spot he saw that one person was holding a motorcycle on which two boys were trying to flee. He further stated that he cannot identify the accused persons as he had not seen their faces on that day as they were surrounded by crowd. It is pertinent to mention here that the witness has not stated that no such incident of robbery ever took place; he has only stated that he cannot recognize the accused persons as they were surrounded by the crowd. Therefore, in effect the witness supports the case of the prosecution as his testimony fortifies the fact that such an incident took place, however, he cannot recognize the accused persons. Hence, the testimony of PW2 does help the accused persons and infact supports the version of the prosecution.
22. It is also contended by the Ld. LAC that PW1/complainant has resiled in his crossexamination as he stated that he does not know whether the accused persons were given beatings by the public or not. He also stated that he does not know from whose possession the mobile phone was recovered. The complainant further deposed that no investigation was done by the IO and that the IO did not prepare any document and did not record any statement in front of me. It is therefore argued that the testimony of the complainant is not reliable. It is to be observed here that the complainant in his crossexamination has not stated that the incident in question never took place. He has only FIR no. 144/2022 State Vs. Karan @ Monu & Ors. PS North Rohini Page no.14/21 Digitally signed by MANSI MANSI MALIK Date:
MALIK 2023.03.06 17:15:16 +0530 deposed qua the investigation conducted by the IO. However, faulty investigation done by the IO cannot be a ground for doubting the credibility of the evidence of the eyewitnesses. The Hon'ble Supreme Court of India has observed in the case of Amar Singh vs. Balwinder Singh ( AIR 2003 SC 1164) that if the prosecution case is fully established by the direct testimony of the eyewitnesses, which is corroborated by the medical evidence, any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief. Therefore, applying the general principles to the present matter, it can be said that as the testimony of the complainant has been found to be credible with respect to the role of accused Karan @ Monu, shoddy investigation, if any, on part of the IO will not adversely impact the case of the prosecution. In view of the aforesaid discussion, it can be said that the accused Karan @ Monu is found to be guilty of the offence u/s 394 IPC.
23. With respect to the offence u/s 411 IPC, as the accused Karan @ Monu has already been found to be guilty of the major offence u/s 394 IPC, the charge u/s 411 IPC framed against him in the alternative need not be discussed. However, as accused Anoop Singh has been acquitted for the offences u/s 392/394 IPC, the charge u/s 411 IPC framed against him requires to be elaborated upon. For the said offence to be proved, the prosecution is required to prove that the stolen property i.e. the mobile phone of the complainant was recovered from his possession. PW1/ Complainant has himself deposed in his examination in chief that his mobile phone was recovered from the possession of accused Karan @ Monu. However, he also Digitally signed by MANSI Date:
MANSI MALIK MALIK 2023.03.06 17:15:22 +0530 FIR no. 144/2022 State Vs. Karan @ Monu & Ors. PS North Rohini Page no.15/21 contradicted himself in his crossexamination by stating that he does not know from whose possession his mobile phone was recovered. In any case, it has not been stated by the complainant that the phone has been recovered from the possession of accused Anoop Singh. The seizure memo of the stolen mobile phone of the complainant is i.e. Ex. PW1/C in the present case. It states that the mobile phone in question was recovered from the possession of accused Karan @ Monu. No recovery has been made from the possession of accused Anoop as per the seizure memo also. Therefore, when no recovery has been affected from accused Anoop Singh, no offence u/s 411 IPC is made out against him.
24. Lastly, coming to the offence u/s 103 DP Act, it is the case of the prosecution that seven mobile phones were seized from both the accused vide seizure memo Ex. PW3/D1 and Ex. PW3/D2. It is further submitted that the accused persons were unable to account for the possession of the said mobile phones and thus there were sufficient reasons to be believe that the same were stolen property. A perusal of the said seizure memos show that no public person has been made a witness in the seizure memos despite the fact that the place from where the said recovery was effected is a public place. The aforesaid observations raise a doubt as to the factum of recovery of the seven mobile phones from both the accused persons. Moreover, a perusal of the record also shows that no written notice was served on the public persons by the IO. The absence of serving written notice upon the public persons cannot be accepted by the court since, PW4/SI Sanjeev Kumar (1 st IO in the present matter) was under obligation to issue notice in writing to the public persons, who refused to join the police investigation particularly in the background Digitally signed by MANSI MANSI MALIK FIR no. 144/2022 State Vs. Karan @ Monu & Ors. PS North Rohini MALIK Page no.16/21 Date:
2023.03.06 17:15:28 +0530 when the accused persons had already been apprehended by the police and there was no apprehension that the accused persons might escape. Moreover, PW4 has not even placed on record the names of the passersby who were asked to join the investigation and neither have any reasons been mentioned by PW4 for refusal by the people who were approached to join the investigation. In the facts and circumstances of the case, this court finds that police has not made any sincere effort to join independent public witnesses during investigation. In this regard reliance is being placed on the following judgments: In a case law reported as "Anoop V/s State", 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under: "18. It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In a case law reported as "Roop Chand V/s The State of Haryana", 1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under: Digitally signed by MANSI MANSI MALIK MALIK Date:
2023.03.06 17:15:34 +0530 FIR no. 144/2022 State Vs. Karan @ Monu & Ors. PS North Rohini Page no.17/21 "3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation but they refused to do do so on the ground that their joining will result into enmity between them and the petitioner". "4. It is well settled principle of the law that the Investigation Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation.
This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All FIR no. 144/2022 State Vs. Karan @ Monu & Ors. PS North Rohini Page no.18/21 Digitally signed by MANSI MANSI MALIK MALIK Date:
2023.03.06 17:15:40 +0530 these facts taken together make the prosecution case highly doubtful".
In case law reported as "Sadhu Singh V/s State of Punjab", 1997 (3) Crimes 55, the Hon'ble Punjab & Haryana High Court observed as under: "5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the 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" "6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh. PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
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.
25. From the aforesaid discussion, it is very clear that the manner in which Digitally signed MANSI by MANSI FIR no. 144/2022 State Vs. Karan @ Monu & Ors. PS North Rohini Page no.19/21 MALIK MALIK Date:
2023.03.06 17:15:47 +0530 the inquiry, seizure and search etc. has been conducted on the spot at the time of alleged recovery of the mobile phones qua the offence u/s 103 DP Act, makes the prosecution version highly doubtful. At this stage, it would also be worthwhile to refer to the judgment of Hon'ble Supreme Court in Sarwan Singh vs State of Punjab (AIR 1957 SC 637) regarding the nature of burden of proof on the prosecution to prove its case. The ratio of this judgment is applied with the same vigour even after passing of more than 50 years. It was held in this case that: "There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted." Again in Jagdish Prasad vs State (Govt Of NCT Of Delhi) 2011 (9) LRC 206 (Del), the Hon'ble High of Delhi had observed that "It is well settled that in a criminal case, in order to bring home the guilt of the accused, the prosecution is required to establish the guilt beyond a shadow of reasonable doubt. If, on consideration of the prosecution evidence, a reasonable doubt remains in respect of culpability of the accused, he is entitled to benefit of doubt."
26. In view of the above discussion, this Court is of considered view that in the present case the prosecution has failed to prove its case against both the accused with respect to the allegations u/s 103 DP Act.
27. In view of the aforesaid discussion, the accused persons are Digitally signed by MANSI MANSI Date:
MALIK MALIK 2023.03.06 FIR no. 144/2022 State Vs. Karan @ Monu & Ors. PS North Rohini Page no.20/21 17:15:53 +0530 convicted/acquitted for the various offences as follows:
Under Section Accused Karan @ Accused Anoop Singh Monu Section 392/394 IPC Convicted u/s 394 IPC Acquitted u/s 392/394 IPC Section 411 IPC Acquitted Acquitted Section 103 DP Act Acquitted Acquitted
28. Arguments on the point of sentence u/s 394 IPC qua accused Karan @ Monu to be heard separately. Bail bonds u/s 437A of CrPC are to be furnished by accused Anoop Singh, which would remain valid for a period of six months. Digitally signed by MANSI MANSI Date:
MALIK MALIK 2023.03.06 17:16:00 +0530 Announced in open Court (MANSI MALIK) on 06th Day of March, 2023 Metropolitan Magistrate NorthWest, Rohini, Delhi FIR no. 144/2022 State Vs. Karan @ Monu & Ors. PS North Rohini Page no.21/21