Delhi District Court
State vs Ashok Ahirwar on 28 March, 2024
IN THE COURT OF SHRI ARVIND BANSAL
ADDITIONAL SESSIONS JUDGE -05 (SHAHDARA)
KARKARDOOMA COURTS : DELHI
*****
SC No. 57/2020
FIR No.: 513/2019
Police Station: Anand Vihar
U/s 394/397/411 IPC
State Versus
Ashok Ahirwar
S/o Shri Harlal
R/o Machhi Wali ka Makan
J.J. Camp, Anand Vihar, Delhi.
.... Accused
(a) Date of Institution: 16.01.2020
(b) Date of Offence: 04.12.2019
(c) Plea of accused: Pleaded not guilty and
claimed trial.
(e) Argument heard & 28.03.2024 (not reserved)
reserved for order:
(f) Final Order: Acquitted.
(f) Date of Judgment: 28.03.2024
JUDGMENT
1. Accused is facing trial having been charged for the offence u/s 394/397/411 IPC. The succinct facts leading to the initiation of criminal proceedings against the accused may be stated as under:-
On 04.12.2019 at about 07:30 pm near Manak Sadan Road, Manak Vihar, Delhi, accused Ashok Ahirwar committed State vs. Ashok Ahirwar Page 1 of 13 robbery of one mobile phone make Samsung Galaxy gold colour having IMEI No. 359765075553441/02 & 359766075553449/02 belonging to complainant Meenakshi Bindra and at the time of committing such robbery, accused voluntarily caused hurt to the complainant and at that time, accused also showed a knife to the complainant and said knife was recovered from the possession of accused at the spot. Secondly, on the aforesaid date, time and place, accused was found in possession of mobile phone make Samsung Galaxy golden colour IMEI No. 359765075553441/02 & 359766075553449/02 of complainant which was robbed by accused from the complainant.
On the basis of a written complaint of complainant, present FIR was registered. During investigation, accused was formally arrested. His disclosure statement was recorded. Seizure memos were prepared.
2. After completion of investigation, challan u/s 173 Cr.P.C. was filed by IO on 16.01.2020 u/s 394/397/411 IPC. The Court took cognizance of the offence on the facts alleged in the challan and proceeded against the accused. The case file was committed to the Court of Sessions vide order dated 11.02.2020 after completion of necessary legal formalities u/s 207 Cr.P.C. Upon receipt of chargesheet pursuant to order of Ld. District & Sessions Judge, Shahdara on 15.02.2020, matter was fixed for hearing on point of charge. After hearing the arguments on point of charge, vide order dated 05.04.2021, Charge u/s 394/397/411 IPC was ordered to be framed against accused. Charge for the aforesaid offence was framed and explained to the accused in vernacular language to which he pleaded not guilty and claimed State vs. Ashok Ahirwar Page 2 of 13 trial.
3. In support of its case, prosecution produced and examined four witnesses.
PW-1 Minakshi deposed that on 04.12.2019, she was going to market on foot and at about 07:30 pm, when she reached in front of Manak Sadan Road, one boy came from her behind on foot and showed her a knife like weapon. She got frightened. He pushed her and robbed mobile phone from her hand. She fell down on the ground. Due to fall, she received injury on her left hand. She raised alarm. In the meantime, IO reached there and apprehended the said boy. On inquiry, his name was revealed as Ashok. Her mobile phone was recovered from right hand of accused and one knife like cutter of red colour handle was recovered from his left hand. IO recorded her statement Ex.PW1/A. The sketch of knife like cutter was prepared. Knife like cutter was sealed with the seal of RS and same was seized. Her mobile phone was also seized vide memo Ex.PW1/B. FIR was got registered by IO by sending one constable to police station. IO prepared site plan at her instance. Accused was arrested vide arrest memo Ex.PW1/C. IO recorded her supplementary statement. During investigation, he handed copy of invoice of her mobile phone PW1/Mark-A. She correctly identified her mobile phone Ex.MO-1 and paper cutter as Ex.MO-2.
The witness was duly cross-examined.
PW-2 Retired SI Rajender Singh deposed that on State vs. Ashok Ahirwar Page 3 of 13 04.12.2019, he was on patrolling duty on private motorcycle vide DD No. 48B (Mark PW2/A) with Ct. Pawan Kumar. At about 07:35 pm, reached near Manav Sadan, Service Road. They saw that one boy was running while carrying a knife and one mobile phone in his hand and one woman was chasing him by raising 'pakdo pakdo'. The said boy was apprehended by him and Ct. Pawan. The said boy was having sumsung mobile in his right hand and knife (katarnuma chaku) in his left hand. In the meantime, the said lady came to them and informed that the said boy robbed her mobile phone and she correctly identified her mobile phone which was in the hand of said boy. He recorded statement of complainant Ex.PW1/A. He requested public persons to join the proceedings, however, they refused and left the spot without disclosing their names and addresses. He seized the mobile phone from the possession of accused and checked its IMEI number and SIM number before seizure. The mobile phone was seized vide memo Ex.PW1/B. Sketch of knife was prepared vide memo Ex.PW2/B. The pullanda of knife was sealed with the seal of RS and same was seized vide seizure memo Ex.PW2/C. Seal after use was handed over to Ct. Pawan Kumar.
He prepared rukka Ex.PW2/D and got FIR registered through Ct. Pawan Kumar by sending him at PS. He prepared site plan Ex.PW2/E at the instance of complainant. He also recorded disclosure statement Ex.PW2/F of accused. He arrested and personally searched the accused vide arrest memo Ex.PW1/C and personal search memo Ex.PW2/G. He recorded supplementary statement of complainant and case property was got deposited in police malkhana. After completion of necessary investigation, he filed the chargesheet before the Court. He also State vs. Ashok Ahirwar Page 4 of 13 correctly identified the accused and case property before the Court.
The witness was duly cross-examined.
PW-3 ASI Ajay Kumar Malik proved the present FIR as Ex.PW3/A, endorsement made by him on rukka as Ex.PW3/B and Certificate u/s 65-B of Indian Evidence Act as Ex.PW3/C. PW-4 HC Pawan reiterated the same assertions as made by PW-2 SI Rajender Singh.
4. On completion of prosecution evidence, separate statement of accused was recorded u/s 313 Cr.P.C whereby all the incriminating material/evidence available on record was put to him. He denied the prosecution case in its entirety and stated that he is innocent and had been falsely and wrongly implicated in this case. No defence evidence was adduced by accused.
5. Final arguments advanced by Shri Pradeep Kumar, Ld. Addl. PP for State and Shri Udayvir Singh, Ld. LAC for accused heard. Record carefully perused.
Arguments:
6. It is the argument of Ld. Addl.PP for State that prosecution succeeded in proving the guilt of accused Ashok Ahirwar on the strength of testimony of PW-1 Meenakshi and PW-2 SI Rajender. It is argued that PW-1/complainant not only identified the accused in Court but also deposed him to be the State vs. Ashok Ahirwar Page 5 of 13 person who committed the alleged offence by showing a a knife to her. He submitted that PW-1 alongwith PW-2 and PW-4 also proved the recovery of stolen case property i.e. mobile phone from the possession of accused. It is the argument that charged offence u/s 394/397/411 IPC stands proved against accused beyond reasonable doubt and therefore, he be convicted.
7. Per contra, Ld. Defence counsel argued that accused had been falsely implicated in the present case by police officials PW-2 SI Rajender and PW-4 HC Pawan merely to solve the case falsely reported by complainant. It is submitted that there are major contradictions in the version of prosecution particularly regarding the manner in which the mobile phone of complainant was allegedly stolen and the manner of investigation. It is the argument that these contradictions go to the root of the matter and benefit thereof must be given to accused and consequently, he be acquitted.
8. Submissions heard at length. Record perused.
9. The Court shall examine the facts of this case in the light of statutory provisions and the law laid down by Hon'ble Higher Courts. Accused has been charged for offence u/s 394/397 IPC. Sec. 394 IPC requires following ingredients to be fulfilled:
(a) Theft of movable property (dishonest removal of property out of possession of any person without the persons consent);
(b) in order to commit theft or in committing the theft or in carrying away or attempting to carrying away property State vs. Ashok Ahirwar Page 6 of 13 obtained by theft, the accused for that end does any of the following:
(b.1) voluntarily causes or attempts to cause any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt or of instant wrongful restraint.
(c) That accused voluntarily caused hurt in committing or in attempting to commit robbery.
Further, Sec. 397 IPC additionally requires the following to be proved on record:
(a) robbery;
(b) at the time of committing robbery, the offender used any deadly weapon, or caused or attempted to cause death or grievous hurt.
10. In the present factual conceptus, while the deposition of PW-1/complainant (being the complainant-cum-eye witness) shall facilitate appreciation of evidence qua commission of offence u/s 394/397 IPC, the deposition of PW-1/complainant read with PW-2 and PW-4 shall provide inroads to the alleged recovery of stole property (offence u/s 411 IPC) as well as paper cutter/knife.
PW-1/complainant deposed that on 04.12.2019 at about 07:30 pm when she was going to market, one boy came from the back side, showed her a knife like weapon, pushed her and robbed her mobile phone which she was carrying in her hand. Meanwhile, two police officials came on a motorcycle and apprehended the said boy and recovered her phone with a knife.
State vs. Ashok Ahirwar Page 7 of 13
11. The removal of mobile phone from the possession of complainant/PW-1 without her consent certainly makes out an offence of theft. The said act also fulfills the condition of 'dishonest' removal as it was undoubtedly done with an 'intention' to cause wrongful loss to complainant and wrongful gain to the said boy. In this regard, reliance may be placed on judgment of Hon'ble Supreme Court in case titled 'K. N. Mehra vs. State of Rajasthan' AIR 1957 SC 369.
Further, while committing the aforesaid act of theft, the offender showed a knife/paper cutter to the complainant. The categorical purpose of showing the said 'knife' was to cause a fear of instant hurt to complainant, in case she resisted or attempted to seek her mobile phone back. PW-1 stated that she got frightened. As such, the theft of mobile phone by the offender by showing a knife makes out the offence of 'robbery' as defined in Sec. 390 IPC and punishable u/s 392 IPC. In this regard, it is apposite to refer to judgment of Hon'ble Supreme Court in case titled 'Venu vs. State of Karnataka' AIR 2008 SC 1199.
Whether accused is the offender:
12. Court shall carefully scrutinize the available deposition of PW-1, PW-2 & PW-4 to find out whether accused is the same person who committed the alleged offence.
13. A studied perusal of the three depositions would provide two different versions of the alleged incident. One such version was put forth by PW-1/complainant while a different version was put forth by PW-2 and PW-4.
State vs. Ashok Ahirwar Page 8 of 13 PW-1 deposed that accused pushed her and robbed her mobile phone due to which she fell down. Meanwhile, police official/IO reached there and 'he apprehended the said boy'. On inquiry, his name was revealed as Ashok. During her cross- examination, she asserted that she raised alarm after falling down. She also stated that seven-eight public persons and gate- keeper came to her help and they also chased the accused but they could not apprehend him. She also deposed that they returned near the gate.
As against this, PW-2/IO and his accompanying official PW-4/HC Pawan deposed that while they were on patrolling duty and reached near Manav Sadan, they saw that one boy was running away with a mobile phone in his hand and one woman was chasing him by raising an alarm. They apprehended the said boy and in the meantime, the said lady, who revealed her name Meenakshi also reached there.
14. In the opinion of this Court, the version put forth by PW-2/IO and PW-4 is thoroughly contrary to the version narrated by PW-1/complainant. The complainant admitted during cross- examination that she never chased the said boy who committed robbery of her mobile phone. She simply stated in her cross- examination that when 'someone' made a call at her mobile number, one police official received the call and told that phone was in their possession and accused had been apprehended.
Such a version of the incident narrated by complainant completely nullifies the case of prosecution as narrated by the witness herself in her examination in chief. There are stark contradictions in the two versions narrated by State vs. Ashok Ahirwar Page 9 of 13 complainant herself. In one of the versions, she asserted that police official apprehended the accused in her presence and her mobile with a knife was recovered from him. A distinct and contradictory version was brought on record in the cross- examination when she deposed that neither the gate-keeper nor the public persons could apprehend the said boy despite chasing him. She did not depose regarding the arrival of police officials or apprehension of accused at the spot by the said officials. She also asserted that police officials told over phone call that her mobile phone had been recovered by them and asked her to reach the police station.
Such a cross-examination of PW-1/complainant demolished the complete case of the prosecution as stated in the examination-in-chief and as recorded in statement Ex.PW1/A. In the opinion of this Court, once cross-examination of the nature discussed here-in-above came on record, the examination in chief of PW-1 as well as her statement made to the police (Ex.PW1/A) became doubtful.
A doubtful statement Ex.PW1/A which also recorded the factum of arrest of accused and recovery of mobile phone, further created a cloud of doubt over the said two aspects as well.
15. It is notworthy that the version of incident narrated by PW-1/complainant is also incongruent to the version deposed by both the police officials. They deposed that one woman was chasing the accused by raising an alarm of 'pakdo pakdo' and as such, they apprehended the boy and recovered the case property and the knife allegedly used. Firstly, PW-1/complainant has nowhere asserted to have chased the boy who allegedly robbed State vs. Ashok Ahirwar Page 10 of 13 her mobile phone. Secondly, she deposed that all the proceedings related to the present case were conducted in the police station and not at the place of incident. Such a statement is completely contradictory to the version of both the police officials who stated that all the documents including the document of statement of complainant were prepared at the spot itself. Thirdly, none of the police officials referred to the call made by public person on the mobile phone of complainant and the instructions of the police to the complainant to reach the police station. Fourthly, both PW-2 and PW-4 claimed to have recovered the mobile phone of the complainant at the spot itself from the accused, while PW-1 in her cross-examination stated that her mobile phone was shown to her, for the first time, when she went to police station.
16. An anxious consideration of the testimony of PW-1 vis-a-vis testimony of PW-2 and PW-4 would provide that accused was neither apprehended at the spot nor the case property was recovered from his possession at the spot in the presence of complainant. The testimony of PW-2 and PW-4 has been put to challenge by the cross-examination of PW-1 herself. She has denied the arrest as well as recovery from the accused at the spot as asserted by police officials. Concludingly, there are grave contradictions and stark dissimilarities in the two versions narrated before the Court and therefore, it cannot be stated with certainty if it was the accused Ashok Ahirwar who actually robbed the complainant of her mobile phone or was the one who was allegedly apprehended at the spot by the police officials. The case of prosecution is full of missing links and the cross-
State vs. Ashok Ahirwar Page 11 of 13 examination of PW-1 made those links more explicit and perverse. As such, the case of prosecution cannot be considered to have been proved beyond reasonable doubt.
Other contradictions:
17. In fact, PW-1 stated in her cross-examination that she did not know what had been written in her complaint and she had not even gone through the documents at the time of signing the same. She stated that she was perplexed and the entire proceedings took place when she went to police station with her daughter and son-in-law. The version of police officials is absolutely different from the complainant. Both PW-2 and PW-4 stated that they recorded her statement at the spot itself. The officials also claimed to have prepared other documents at the spot itself.
There is no explanation of the prosecution as to why the seizure memo of the paper cutter/knife and the sketch thereof do not bear the signatures of complainant if the said documents were prepared at the spot in her presence. While the recovery memo of mobile phone bears signatures of complainant, it is not the case with recovery memo of the paper cutter/knife. There are no signatures of complainant even on the site plan prepared at her instance. Similarly, there are signatures of complainant on t he arrest memo of the complainant but her signatures on the personal search memo are missing. Similar thereto, there are no signatures of the complainant on the disclosure statement of accused.
The absence of signatures of complainant particularly on the sketch and seizure memo of knife make the Court doubt State vs. Ashok Ahirwar Page 12 of 13 about the recovery thereof from the possession of accused. It also makes the Court believe regarding the probability of foisting upon of the knife upon accused by the investigating agency. Such deformities in the manner of investigation go to the root of the matter and belies the claim of prosecution.
Conclusion:
18. In the light of aforesaid discussion, Court is of the opinion that there are material contradictions, deficiencies and deformities in the case of prosecution. Mere identification of accused by complainant or the police officials during their testimony cannot be the sole and sufficient ground to hold the accused guilty of an offence. The prosecution is under statutory duty to prove all the ingredients of the offence and the categorical role of the accused. In the present case, the presence of accused, the act of robbery by the said accused and the recovery of case property as well as weapon of offence is doubtful for the reasons discussed in the preceding paragraphs. As such, prosecution failed to prove the charged offence u/s 394/397/411 IPC against accused Ashok Ahirwar beyond reasonable doubt and he is, thus, acquitted for the offence u/s 394/397/411 IPC.
Dictated and announced in the open Court on 28.03.2024.
(ARVIND BANSAL) Additional Sessions Judge-05 (Shahdara) Karkardooka Courts, Delhi State vs. Ashok Ahirwar Page 13 of 13