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Delhi District Court

State vs . Ravinder & Anr. on 19 July, 2013

                            IN THE COURT OF SH. PANKAJ ARORA, MM­01,
                             WEST DISTRICT, TIS HAZARI COURT, DELHI

STATE Vs.  RAVINDER & ANR.
FIR No.  160/08
PS: P. Bagh
U/S: 379/411 IPC

ID No.                                     : 02401R1497842008

Date of commission of offence              : 13.05.2008

Date of institution of the case            : 11.07.2008

Name of the complainant                    : Sh. Deepak 

Name of accused and address                : 1)Ravinder @ Sunda S/o Sh. Baljit Singh R/o 
                                             Sh.   Baljit   Singh   R/o   B­120,   Aman   Vihar, 
                                             Delhi.
                                             2)   Dharmender   S/o   Jai   Ram   R/o   C­7/91, 
                                             Sultan Puri Delhi.  

Offence complained of or proved  : U/s 379/411 IPC

Plea of  the accused                       : Pleaded not guilty

Final order                                : Acquitted

Date of judgment                           : 19.07.2013

                                         J U D G M E N T

1 The case of the prosecution in brief is that on receipt of DD No. 17, HC Satbir Singh proceeded at Balaji Nursing Home where he obtained MLC No. 1146/08 and recorded the statement of one Deepak who was working as Civilian Store Keeper at State Vs. Ravinder & Anr. Page No. 1 of 15 Ordinance Depot, Shakurpur Basti. He made a complaint on 25.04.2008 that when he deboarded from the bus which was plying on root no. 918, 3­4 young persons obstructed him, gave him pushing and stole his mobile phone make of Nokia 1110 having connection chip no. 9868109227. On the basis of the said complaint, the present FIR came to be registered. Thereafter, investigation was carried out. On 13.05.2008, during bus checking, on the information received from secret informer, accused Ravinder @ Suja and accused Dharmender were arrested and one mobile Nokia 1110 and one body of mobile was recovered. They have made disclosure about the incident took place on 25.04.2008. Thereafter, charge sheet was filed. Charge for the commission of the offence under Section 379/34 & 324/34 IPC was framed against both the accused persons, to which they did not plead guilty & claimed trial. Charge for the commission of the offence under Section 411 IPC was framed against the accused Dharmender, to which he did not plead guilty & claimed trial.

2 The prosecution examined nine witnesses in support of its case, which are as follows:

(1) Sh. Deepak was examined as PW­1. He deposed that he has been working as Civilian Store Keeper at Ordinance Depot Shakur Basti. He further deposed that on 24.04.2008, at about 9 a.m., he had boarded in a bus route no. 918 for his office and when the said bus reached at Peera Garhi bust stand, his store Supdt. K.K. Sharma had also boarded in the same bus and at about 9.30 a.m. when the said bus reached at traffic signal light of Ordinance Depot and while they both were deboarding the bus from the gate of said bus but they were obstructed by 3­4 young persons who were already State Vs. Ravinder & Anr. Page No. 2 of 15 standing there but any how they managed to deboard the said bus at some distance from the said traffic signal light by giving pushing to the passengers. He further deposed when he got attention towards his pocket of his wearing pant in which mobile phone was kept suddenly he found that the mobile phone make of Nokia 1110 having connection chip of Dolphin 9868109227 was missing. He further deposed that said incident was told by him to Sh. K.K. Sharma thereupon, they had followed to the said bus by a TSR and at near traffic signal light of Madipur colony the said bus was got stopped. He further deposed that he told to the conductor for getting down the passengers from the bus for checking. He further deposed that then, 4­5 young boys came down to bus and started to manhandling with him. He further deposed that during the man handling, one of the said boys gave knife blow to him on his right thigh. He further deposed that they boarded the same bus and ran away. He further deposed that as the incident had taken place in front of his office, he firstly went to his office for first aid thereafter, he went to Sri Balaji Hospital. He further deposed that in the meantime, Col. Partap Singh of his office had made a telephone call to police. He further deposed that police came to him at the hospital and recorded his statement. He further deposed that the same is Ex.

PW­1/A bearing his signature at point A. He further deposed that he was taken to PS Madipur on the same day. He further deposed that his statement was again recorded. He further deposed that he returned to his house. He further deposed that after 2­3 months, he came to know that one mobile has been recovered. He further deposed that he was called at Rohini Court to identify his mobile. He further deposed that he was not able to identify his mobile as all the phones show to him were in bad conditions. He further State Vs. Ravinder & Anr. Page No. 3 of 15 deposed that he also participated in the TIP of accused persons. He further deposed that the accused persons present in the Court that day are not the persons who had snatched his mobile or given injury to him. During this cross­examination by Ld. APP for the State, he denied the suggestion that on that day, he had identified two person namely Ravinder and Dharmender being the persons who along with their associates had committed theft of his mobile and had given stab injury on his thigh. The witness was confronted with statement mark X from point A to A1, where it was so recorded. He stated that at this stage, MHCM has produced three mobile phone. The case property was shown to the witness but none was identified. The witness was not cross­examined despite having given the opportunity.

2) HC Vijender is the duty officer who recorded & identified the present FIR registered by him. He also identified his endorsement on the rukka which is Ex. PW­2/A. He was not cross­examined despite having given the opportunity.

3) Mr. K.K. Sharma was examined as PW­3. He deposed that he had boarded a bus route no. 918 from Inder Enclave, Pashim Vihar for his office. He further deposed that his Assistant Sh. Deepak who was working in Ordinance Depot, Shakur Basti had already been in the same bus and he met him in the bus. He further deposed that when the bus reached at Bus Stop of Ordinance Depot and when they were trying to deboard the bus at the said bus stop but some people have surrounded us and were pushing them and they were not able to get down at the bus stop. He further deposed that they managed to get down at the bus stop. He further deposed that immediately thereafter, his Assistant Deepak told him that his mobile phone was missing which he had kept in State Vs. Ravinder & Anr. Page No. 4 of 15 his pocket of the pant. He further deposed that they hired a TSR and chased the said bus and at Madipur Traffic signal, they stopped the said bus and told the conductor of the bus about the theft of mobile phone of Deepak. He further deposed that Deepak then told the conductor that few boys who had surrounded him have taken out his mobile phone from his pocket. He further deposed that Deepak pointed out towards a boy who was having his mobile phone. He further deposed that in the meantime, some other persons who were with that boy also came there and intervened in the matter and on protest, they pelted stones at Deepak and himself. He further deposed that one of the boys gave a knife blow on the thigh of Deepak and caused injury to him. He further deposed that they ran away from the spot in order to save them and reported the matter to their Senior Administrative Officer who in turn informed the police. He further deposed that medical treatment was given to Deepak in their office. He further deposed that after sometime, police came to their office and recorded his statement. He further deposed that the police thereafter went to spot along with him and at his instance they prepared site plan Ex. PW­3/A bearing his signatures at point A. He further deposed that today, he could not identify the accused persons who are present in the court due to lapse of time despite specifically pointing out towards them by the Ld. APP. The witness was not cross­examined despite having given the opportunity given.

4) HC Harish Kumar was examined as PW­4. He deposed that on 25.04.2008, he was posted at PS Punjabi bagh and on that on receiving DD No. 17, he along with IO HC Satvir Singh went to the spot i.e. Ordinance Depot where it was learnt that the injured Deepak was taken to the Balaji Nursing Home. He further deposed that IO and himself State Vs. Ravinder & Anr. Page No. 5 of 15 went to the hospital where the MLC of the injured as collected. He further deposed that the injured was not found present at the hospital and they again came back to the spot and from there they came back to the police post. He further deposed that as the police post the injured Deepak was found already present accompanied by one K.IK. Sharma, the Superintendent of the Ordinance Depot. He further deposed that the statement of Deepak was recorded by the IO and on his statement rukka was prepared and he took the same to the PS and got the Fir registered. He further deposed that the injured Deepak produced two bus tickets of Rs. 3 each which was seized vide seizure memo Ex. PW­4/A bears his signature at point A. He further deposed that the ticket are Ex. P1 and Ex. P2. He further deposed that the Io searched for the accused persons but they could not be found, IO recorded his statement. The witness was cross­examined but nothing material came out in his cross­examination.

5) Sh. Ravinder Kumar Pandey was examined as PW­5. He deposed that summons were received for the present FIR by him neighborer namely Sh. Himmat Singh who informed him about the same. He further deposed that the vehicle no. DL­IPB­4033 was in the name of Ms. Navy Mehta and the same was bought by him in the year 2002 and the power of attorney of the same, he had brought with him in the Court that day. He further deposed that the bus no. DL­IPB­4033 belonged to him and so he had brought the said vehicle to the Court that day and the same was parked in the Court parking. He further deposed that the power of attorney is Ex. PW­5/A (OSR). The case property was correctly identified by the accused which is Ex. P­1. The witness was cross­examined but nothing material came out in his cross­examination. State Vs. Ravinder & Anr. Page No. 6 of 15

6) Sh. Prem Nath Malhotra, Medical Record Clerk from Sri Balaji Action Medical Institute was examined as PW­6 who identified the MLC prepared by Dr. Anshu Kumar which is Ex. PW­6/A. The witness was not cross­examined despite having given the opportunity.

7) Ct. Arjun Singh was examined as PW­7. He deposed that on 13.05.2008, he was posted at PP Madipur, PS P. Bagh as a Ct. He further deposed that he was participating in the investigation of above said case along with HC Satvir. He further deposed that they were conducting vehicle checking at Madipur Bus stand. He further deposed that at that time,m secret informer met HC Satvir and told that a bus which was coming from P. Bagh side and some pick pocketer were also present in the said bus. He further deposed if you raided it, they would be apprehended. He further deposed that about about 8.10 p.m., said bus came at Madipur Bus stand and on the identification of secret informer, they overpowered both accused namely Ravinder and Dharminder when they were in the process of de­boarding the said bus. He further deposed that then, HC Satvir took cursory search of both accused persons and one mobile phone make Nokia 1110 was recovered from the possession of accused Ravinder and another Mobile phone was also recovered from possession of accused Dharminder. He further deposed that on the inquiry, accused Ravinder disclosed that he had stolen said mobile phone from the possession of a body inside the bus of the route no. 918, 19­20 days ago. He further deposed that then, Io took said mobile phone in police possession after wrapping the same in a pulanda and same was duly sealed with the seal of SB. He further deposed that after use, seal was handed over to him. He further deposed that then, IO took said State Vs. Ravinder & Anr. Page No. 7 of 15 pulanda in police possession vide seizer memo which is Ex. PW­7/A bearing his signature at point A. he further deposed that also seized recovered mobile from possession of accused Dharminder U/s 102 Cr.P.C. vide memo which is Ex. PW­7/B bearing his signature at point A. he further deposed that then IO arrested both accused persons vide respective arrest memos which are Ex. PW­7/C and PW­7/D both bearing his signature at point A. Personal search of both accused persons was carried out vide respective personal search memo which are Ex. PW­7/E and PW­7/F both bearing his signature at point A. He further deposed that during personal search of Dharminder, one black purse was found and same was containing Rs. 300/­ and visitng car and one mobile phone TATA INDICOM . He further deposed that then, IO deeply interrogated both accused persons and recorded their respective disclosure statement vide disclosure memo which are Ex. PW­7/G and PW­7/H both bearing his signature at point A. He further deposed that both accused person were admitted commission of offence in respect of present case. He further deposed that then, they reached at the spot and IO prepared pointing out memo of the place of incident on the pointing out of accused persons vide memo which is Ex. PW­7/I bearing his signature at point A. He further deposed that they reached at house of accused Dharminder in the pursuance of disclosure statement, where two body of mobile phones in black and grey color was recovered from the house of accused Dharminder. He further deposed that then, IO took recovered body of mobile phone in police possession after wrapping the same in a pulanda and same was duly sealed with seal of SB vide seizer memo which is Ex. PW­7/J bearing his signature at point A. He further deposed that they went ot P1 C6 E4 State Vs. Ravinder & Anr. Page No. 8 of 15 block of Sultanpuri area in search of other accused persons but no other accused persons were found there. He further deposed that they returned back at the PS and accused persons were sent to police lock up and case property was deposited in Mal Khana. He further deposed that he could identify if shown to him. The witness correctly identified the case property which are P­3 & Ex. P­4.

8) LCt. Rajni is the duty officer who recorded & identified the present FIR. He also identified his endorsement on the rukka which is Ex. PW­8/A. He was not cross­ examined despite having given the opportunity.

9) HC Satbir was examined as Ex. PW­9. He deposed that on 25.04.08, he was posted at PP Madipur PS P. Bagh as a HC. He further deposed that on assigning DD No. 17 PP Madipur and on receiving call by telephone, he alongwith Ct. Harish arrived at Ordinance Depot where he came to know that injured Deepak has been shifted to Balaji Nurshing Home. He further deposed that they reached at the hospital from where he obtained the MLC no. 1146 of Deepak and he came to know that injured Deepak had left the hospital. He further deposed that he alongwith Ct. Harish via Ordinance Depot reached at PP Madipur where injured Deepak met them and he recorded his statement Ex. PW1/A attested by him at point B. He further deposed that he prepared his endorsement Ex. PW9/A bearing his signature at point A and handed over the same to Ct. Harish for registration of FIR at PS. He further deposed that during investigation at the instance of Sh. K.K. Sharma, Superintendent of Ordinance Depot he prepared site plan Ex.PW3/A bearing his signature at point B and he recorded the statement of witnesses and made efforts to trace the case property and accused persons. He further deposed that on 13.05.08, he alongwith Ct. Arjun were on vehicle checking duty at Madipur Red Light where a secret information was received that that there were two persons in the bus on the back State Vs. Ravinder & Anr. Page No. 9 of 15 gate, they may be pick pocket. He further deposed that they made both the two person deboarded from the bus and made inquiry from them. He further deposed that on interrogation, their names were revealed as Ravinder @ Sunda S/o Baljeet and Dharmender. He further deposed that a mobile phone make Nokia was recovered from the possession of accused Ravinder and he disclosed that he alongwith other accused persons namely Manohari, Dharmender, Tej Singh and Sunil had stolen the mobile about twenty days ago near Ordinance Depot in a bus from the possession of one boy. He further deposed that he converted the above said mobile into pullanda and sealed with the seal of SB and took the aforesaid pullanda in the police possession vide memo Ex. PW7/A bearing his signature at point B. He further deposed that on sustained interrogation at the instance of accused Dharmender from his house situated at Sultanpuri a body of mobile phone in two pieces light grey and white was recovered and he disclosed that it is the body of same mobile which other accused namely Ravinder Sunda had taken out from the pocket of a boy about 20 days ago in a bus. He further deposed that he converted the body of the mobile into pullanda and sealed with the seal of SB and took the aforesaid sealed pullanda into police possession vide memo Ex. PW7/J bearing my signature at point B. He further deposed that from the possession of Dharmender another mobile having camera was recovered and same was taken into police possession U/s 102 Cr.P.C vide memo Ex. PW7/B bearing his signature at point B. He further deposed that seal after use handed over to Ct. Arjun. He further deposed that he recorded the disclosure Statement of accused Ravinder and Dharmender Ex. PW7/G and H respectively bearing his signature at point B. He further deposed that both the accused persons Ravinder and Dharmender vide memo Ex. PW7/C and D bearing his signature at point B and conducted personal search vide memo PW7/E and F bearing his signature at point B. He further deposed that at the instance of accused Dharmender and Ravinder, he prepared pointing out memo of place of occurrence and same is Ex. PW7/I State Vs. Ravinder & Anr. Page No. 10 of 15 bearing his signature at point B. He further deposed that on 14.05.08 at PP when we were make interrogation from both accused Dharmender and Ravinder, meanwhile complainant Deepak arrived and identified both the accused persons and he recorded the statement of Deepak in this regard. He further deposed that during further investigation he came to know that other 4 accused persons namely Manori, Anil, Tej Singh, Sunil were in the Rohini Jail. He further deposed that he filed production warrants of 4 accused before Hon'ble Court. He further deposed that aforesaid 4 accused were produced and he made interrogation from above 4 accused with permission of court and arrested all 4 accused namely Sunil, Tej Singh, Anil, Manohri vide memo Ex. PW 9/B, C, D and E and recorded their disclosure statement combindly Ex. PW9/F bearing his signature at point A. He further deposed that he filed an application before the court for TIP of the aforesaid 4 accused persons and case property also. He further deposed that since the complainant Deepak failed to identified the four accused persons namely Manohari Lal, Sunil, Tej Singh and Anil and case property he got them discharged from Hon'ble Court. He further deposed that he obtained the call detail of mobile phone in which IMEI no. of the phone was tallied. He further deposed that Sh. K.K. Sharma had produced two ticket of Rs. 3/­ of bus bearing no. DL 1PB 1787 Route no. GL 91. He further deposed that he took two tickets into police possession vide memo Ex. PW4/A bearing his signature at point B. he further deposed that two tickets are collectively Ex. PW9/G. He further deposed that during investigation, he also served the notice u/s 133 MV Act on Sh. Jaspal Singh owner of the bus no. DL 1PB 1787 to produce the driver and conductor of the bus at PP Madipur. He further deposed that the notice dated 25.04.08 is Ex. PW9/H bearing his signature at point A on which he replied that that one Satish Kumar Kaushik Conductor of bus No. DL 1PB 4033 had taken the three blocks of the tickets of Rs. 3/­ from him. He further deposed that he served a notice to one Sh. Himat Singh, owner of the bus bearing no. DL 1PB 4033. The State Vs. Ravinder & Anr. Page No. 11 of 15 notice is Ex. PW9/I bearing his signature at point A. He further deposed that the bill of mobile no. 9868109227 in the name of Deepak is Ex. PW9/J. He further deposed that call details of the aforesaid mobile running in 3 pages is collectively Ex. PW9/K. He further deposed that he could identify the case property (case property is not disputed by counsel for the accused and has already been exhibited). He further deposed that accused Dharmender and Ravinder are present in the court correctly identified by the witness. He further deposed that after completion of investigation he filed the present charge sheet against the accused persons. During his cross­examination, he stated that there was no public person present on the spot but public persons were coming and going from the spot. He further stated that first of all PCR call received at PP, thereafter he reached at the spot. He further stated that when he reached at the house of accused Dharmender, he did not call any public person to join the investigation. 3 Thereafter, statement of accused persons U/s 313 of Cr.P.C. was recorded, in which all the incriminating evidence were put to the accused persons. Accused persons stated that they have been falsely implicated in the present case and police falsely picked them up from their house. Accused persons opted not to lead any evidence in defence. 4 It is observed that the accused has been arrested on the basis of disclosure statement made by them during the course of investigation to the police which is hit by Section 25 of The Indian Evidence Act. Apart from the disclosure statement, there is nothing on record to suggestion commission of theft by the accused. It is also observed that main complainant Deepak (PW­1) did not identify the accused persons in the Court. He stated that the accused persons present in the Court that day were not the persons who had snatched his mobile or given the injury to him. PW­1 has also failed to identify the recovered case property i.e. mobile phone & body of mobile. As PW­1 was resiling State Vs. Ravinder & Anr. Page No. 12 of 15 from his earlier statement made to the IO, Ld. APP for the State was permitted to cross­ examine him. During the cross­examination, PW­1 has categorically denied the suggestion put by Ld. APP for State that on that day (14.05.2004), he had identified two persons namely Ravinder and Dharmender (accused persons herein) being the persons who along with their associates had committed theft of his mobile and had given stabbed on his thigh. Even another eye­witness namely Mr. K.K. Sharma (PW­3) has also failed to identify the accused persons despite specifically pointing out towards them by Ld. APP for the State.

It is pertinent to mention here that it has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 the Hon'ble Punjab & Haryana High Court :­ "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."

In a case law reported as Anoop Joshi 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 State Vs. Ravinder & Anr. Page No. 13 of 15 legal duty to assist the police in investigation as a citizen, which is an offence under the IPC''.

5 It is pertinent to note that it has been held by the superior courts by various pronouncements that when independent public persons are available at the spot and they are not joined in the investigation by the investigating agency and unless and until any reasonable and plausible explanation comes from the prosecution as to why the independent public persons was not joined, the case of prosecution should be seen with reasonable circumspection as it would be unsafe to believe the story of the prosecution in absence of the independent public witnesses. In the case titled as Sanspal Singh, Appellant Vs. State of Delhi, Respondent 1999 Cr. L.J. 19, wherein the Hon'ble Supreme Court held that non­joining of public witnesses would be fatal only to the prosecution in the situation where there were no public witnesses available or none was willing to associate in the investigation but would be fatal only when despite the availability of the public witnesses no one was joined in the investigation. Now, it is to be seen in the back drop of the facts of the present case whether the story as put forth by the prosecution can be believed on the touch stone of the law at settled in the aforesaid case of Sanspal Singh. In this case it is very much clear that police officials have not made any independent person as witness in this case despite the availability of the same at the spot.

6 It is observed that police official have not made sincere efforts to make public persons as witness in this case despite the availability of them at the spot. It is pertinent to note that IO/HC Satbir (PW­9) had stated in his cross­examination that there was no State Vs. Ravinder & Anr. Page No. 14 of 15 public persons at the spot but public persons were coming and going from the spot. No notice has been given by the IO to those public persons.

7 It is well settled that it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. Therefore, on the basis of the material available on the record, the case of the prosecution becomes doubtful and the benefit of doubt certainly goes in favor of the accused. The prosecution has failed to prove its case beyond all reasonable doubts against the accused. Accordingly, taking into consideration the facts and circumstances of the case, accused namely Ravinder & Dharmender are hereby acquitted from the charges punishable U/s 379, 324 & 411 of IPC. Announced in the open Court, On 19th, July, 2013.

(Pankaj Arora) MM­01 (West)/Delhi 19.07.2013 State Vs. Ravinder & Anr. Page No. 15 of 15 FIR NO. 160/08 PS: P. Bagh 19.07.2013.

Present: Ld. APP for the State.

Both the accused persons namely Ravinder & Dharmender in person. Vide separate judgment dictated in the open court, both the accused persons namely Ravinder & Dharmender are hereby acquitted.

Bail Bond and Surety Bond cancelled & Surety discharged. Original documents be returned to rightful owner against counter signed photocopy of the same.

File be consigned to the Record Room.

(Pankaj Arora) Ld. MM­01,West, THC, Delhi 19.07.2013.

State Vs. Ravinder & Anr. Page No. 16 of 15