Delhi District Court
Sc No 128/14 State vs Sonu 1 Of 8 on 30 October, 2014
IN THE COURT OF SH. SUDESH KUMAR
LD. ASJ07, SOUTH EAST, SAKET COURTS, NEW DELHI
IN THE MATTER OF
CASE ID NO. : 02406R0192182013
SESSIONS CASE NO. : 128/14
FIR NO. : 72/13
POLICE STATION : HAZRAT NIZAMUDDIN
UNDER SECTION : 392/397 IPC
STATE
VERSUS
SONU
DATE OF INSTITUTION : 23.07.2014
DATE OF RESERVING ORDER : 30.10.2014
DATE OF DECISION : 30.10.2014
JUDGEMENT
CASE OF PROSECUTION:
1) Briefly the case of the prosecution is that on 09.03.2013, at about 10.30 PM the duty officer deputed in PS Hazrat Nizamuddin received an information regarding robbery committed by two miscreants on a motorbike on gun point. The driver of the motorcycle was wearing helmet whereas the pillion rider was without helmet and was having a pistol. The duty officer entered the said information in rojnamcha as DD No. 26A and copy of the same was sent to SI Dinesh Kumar through Constable Hansraj for further course of action. Upon receipt of DD entry no 26A, IO/SI Dinesh Kumar alongwith Constable Shahid reached at spot i.e. near East Nizamuddin Petrol Pump, Mathura Road where the complainant Sh. Sahdeep Tripathi met them and made his statement.
SC NO 128/14 STATE vs SONU 1 of 8 In his statement, the complainant reported that on 09.03.2013, at about 10 PM, he hired an autorickshaw bearing registration no. DL 1 RK 9062 and was going towards Nizamuddin Railway Station. When the auto rickshaw reached ahead of Neela gumbad near East Nizamuddin Petrol Pump, Mathura Road, Nizamuddin, at about 10.20 PM all of a sudden two persons came on a motorcycle, which was without number plate, waylaid them. The driver of the motorcycle was putting on the helmet whereas the pillion rider was without helmet. The pillion rider showed the pistol inserted into his dub to the complainant and threatened him to handover whatever he was carrying otherwise he would be killed. The complainant out of fear handed over Rs. 15,000/, one gold ring and one silver ring to them. Thereafter both the accused persons fled from the spot. On this complaint the FIR in the present case was registered. The IO also got prepared one portrait of the accused at the instance of the complainant in State Crime Record Bureau and send it to all the police stations. Subsequently two accused persons namely Sonu and Gopal Singh were arrested in case FIR No 96/13 u/S 379/356/34 IPC PS Amar Colony in which they disclosed about their involvement in the present case and accordingly the present case was worked out and the accused were arrested. However, no recovery could be effected from the accused Gopal Singh, there was no incriminating evidence against him and hence he was discharged by the Ld. MM vide Order dated 22.03.2013. The accused Sonu however, refused to participate in the TIP proceedings before the Ld. MM and he also got recovered Rs. 6,700/ from his house at Begampur, New Delhi. He disclosed that he along with one Surender Yadav on his motorcycle robbed the said amount from a auto on Mathura Road near petrol pump about 1012 days back. Hence, after investigation, chargesheet was filed against the accused Sonu who SC NO 128/14 STATE vs SONU 2 of 8 is facing trial in the case. As per the chargesheet however, the other accused Surender Yadav could not be arrested.
2) Since the offence's u/S 392/397/411/34 IPC are exclusively triable by the Court of Sessions therefore, after supply of document Ld. Metropolitan Magistrate committed the case to the Court of Sessions.
3) Primafacie a case u/S 392/397/411/34 IPC was made out against the accused. Accordingly, charges for the said offences were framed against the accused to which he pleaded not guilty and claimed trial.
WITNESSES EXAMINED: A brief summary of the deposition of the PWs is as under:
4) The complainant Sh. Sahdeep Tripathi has been examined as PW 1. He deposed that in the month of March'2013, at about 10.15 PM he was going to Nizamuddin Railway Station from his house by an auto and that when he reached opposite Nizamuddin Railway Station on Mathura Road, one motorcycle came from the back side, the driver of the motorcycle was wearing helmet and the pillion rider was without helmet having a bag which looked like an office bag. The pillion rider asked the auto driver to stop the auto and showed him the firearm and demanded all his belongings threatening to kill. The complainant further deposed that out of fear he handed over Rs. 15,000/, one silver ring and one gold ring to him and thereafter both the accused persons fled. The complainant further deposed that he tried to note down the registration number of the said motorcycle but there was no number on the plate and thereafter he alongwith auto driver took Uturn and went to PS SC NO 128/14 STATE vs SONU 3 of 8 Nizamuddin. The complainant however failed to identify the pillion rider accused Sonu @ Lovely present in the court and stated that accused was not the assailant. The complainant also could not identify the robbed currency notes.
Ld. Defence Counsel was provided an opportunity to crossexamine the witness but he opted not to crossexamine.
5) PW 7 Sh. Harender Mehto is the driver of the TSR in which the complainant was travelling. He corroborated the case of prosecution as far as the incident is concerned, however, he also turned hostile qua the identity of the accused and failed to identify the accused to be the person who had robbed the complainant.
Ld. Defence Counsel was provided an opportunity to cross examine the witness, but he opted not to cross examine.
6) PW 2 Constable Shahid accompanied the IO SI Dinesh Kumar to the spot pursuant to receipt of DD No. 26A. He brought the rukka to the police station and after registration of the FIR handed over the same to the IO at spot.
In his cross examination, he stated that the IO recorded the statement of the victim at spot and that the complainant remained with them while they were making search for the assailant.
7) PW 3 Constable Hansram took the copy of DD entry No 26A from police station and handed over same to the IO.
8) PW 4 Constable Ashok deposed that on 21.03.2013, accused Sonu pointed out the place of occurrence in his presence and on 22.03.2013, SC NO 128/14 STATE vs SONU 4 of 8 the accused got recovered Rs 6,700/ from under the mattress of the bed in the house of the accused Sonu in his presence which were taken into possession by the IO.
The cross examination of this witness could not be completed as he did not turn up despite service of summons.
9) PW 5 ASI Ramesh Pal is the duty officer who scribed FIR No 72/13 which he proved on record as Ex. PW 5/A.
10) PW 6 Constable Manoj Kumar accompanied SI Dinesh Kumar, IO of the case to Ghaziabad in search of accused Surender @ Chotu vide DD No. 25B but the accused could not be traced out, so they returned back to the police station and made arrival entry DD No. 35B. They again raided the premises of accused on 01.05.2013, but the accused could not be found.
11) PW 8 HC Devender Singh had arrested the accused Sonu and Gopal in case FIR No. 96/13 PS Amar Colony u/S 356/379/34 IPC in which they disclosed about their involvement in the present case. Accordingly, he informed the IO in the present case.
In his cross examination, he deposed that public persons had also gathered at the time of the arrest of the accused persons but he had not asked any public person to join the proceedings.
12) PW 9 Constable Mahender Singh was present with HC Devender and while checking the vehicles they had arrested accused Sonu and Kartar regarding which an FIR No. 96/13 PS Amar Colony was registered. In the said case, accused Sonu had disclosed about his involvement in the SC NO 128/14 STATE vs SONU 5 of 8 present case.
In his cross examination he deposed that he cannot give the exact number of the vehicles checked by them on the said day and also that they had not noted down the numbers of the vehicle checked by them on the said day.
13) PW 10 HC Jaiprakash also corroborated the version of PW 8 & PW 9 as far as the arrest of accused Sonu while checking the vehicles and registration of FIR NO. 96/13 PS Amar Colony is concerned.
14) PW 11 SI Dinesh Kumar is the IO of the case. He deposed that on 09.03.2013, at about 10/10.30 PM upon receipt of DD No. 26A, he alongwith Constable Shahid reached at the spot i.e. Mathura Road, East Nizamuddin Petrol Pump where the complainant Sahdeep Tripathi alongwith the auto driver Sh. Mehto met them. He recorded the statement of complainant. He further deposed that on 13.03.2013, upon receipt of information that accused Sonu and Gopal disclosed in FIR NO 96/13 PS Amar Colony about their involvement in the present case, he interrogated both the accused persons and arrested them. He proved the arrest as well as personal search memo of the accused on record. He also deposed that accused Sonu got recovered Rs 6,700/ from his house in Begampur vide seizure memo Ex. PW 4/B. He further deposed that co accused Gopal had melt the gold rings robbed in the present case. In his cross examination, he deposed that he had refreshed his memory in the court and noted down the dates. He further deposed that he did not visit the house of any neighbour to join them as witness at the time of recovery.
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15) No other witness was examined by the prosecution and PE hence was closed and the matter was fixed for statement of accused.
16) The entire aforesaid incriminating evidence produced by the prosecution was put to accused Sonu @ Lovely and his statement u/s 313 Cr. PC was recorded separately. In his statement tendered u/s 313 Cr. PC, he denied all the allegations levelled against him. The accused declined to lead DE, DE hence was closed and matter was fixed for final arguments.
17) Final arguments were heard at length.
18) To prove its case, the prosecution has examined two public witnesses i.e. PW 1 & PW 7. Both the said witnesses have supported the case of the prosecution as far as the incident is concerned, however, they failed to identify the accused present in the Court. The witnesses also did not identify the currency notes allegedly recovered from the accused Sonu. PW 1 the complainant in his cross examination despite the accused being pointed out categorically denied that the accused Sonu present in the Court was the assailant who had robbed him at gun point. He also stated that he cannot identify the currency notes produced in the Court. Furthermore, PW 7 Harender Mehto who was driver of the TSR in which the complainant was travelling also turned hostile qua the identity of the accused and stated that he cannot identify the accused present in the Court as it was dark at the time of incident and the pillion rider on the motorbike has also covered his face with a cloth.
Furthermore on perusal of record it is clear that the recovery of the currency notes from the accused Sonu is also doubtful. The IO has SC NO 128/14 STATE vs SONU 7 of 8 admitted that he has not asked any public person to join the recovery proceedings. It is clear that he has not even made an attempt and asked the public persons to join the proceedings despite the availability of such witnesses. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses and in case no such attempt is made it reflects adversely on the prosecution case.
The number of currency notes was never mentioned by the IO in the seizure memo itself. Even no signatures of any of the family members have been obtained on the recovery memo. Even otherwise, the complainant and the other public witness, both have also failed to identify the currency notes allegedly recovered from the accused. The prosecution has totally failed to produce any evidence which could connect the accused to the alleged offences. Apart from the abovesaid witnesses, all remaining witnesses are formal in nature, being the police officials and the Doctors. In view of the abovesaid and as the prosecution has failed to bring home the guilt of the accused by adducing any evidence connecting the accused with commission of offence, this Court is left with no option but to acquit the accused. The accused stand acquitted for the offences alleged against him.
ANNOUNCED IN (SUDESH KUMAR)
THE OPEN COURT ASJ07, S.E., SAKET COURTS
ON 30.10.2014 NEW DELHI
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