Delhi District Court
State vs Rahul Kuamr on 21 February, 2025
IN THE COURT OF SHASHANK NANDAN BHATT
JUDICIAL MAGISTRATE FIRST CLASS-02,
WEST DISTRICT, TIS HAZARI COURTS
State
Through Station House Officer,
PS Rajouri Garden
Case arising out of FIR No 654/14
PS Rajouri Garden .....State
VERSUS
Rahul Kumar S/o Sh. Manoj Singh
R/o 465, T-Huts, W-139, Raghubir Nagar,
Delhi.
......Accused
a) CNR No. : DLWT020108492016
b) Sl. No. of the Case : 75442/16
c) Name of the complainant : Sh. Gaurav @ Gollu S/o Sh. Chander
Kant Vijay.
d) Name & address of accused : Rahul Kumar S/o Sh. Manoj Singh
FIR No. 654/14
PS Rajouri Garden
State Vs. Rahul Kumar Page 1 of 14
Digitally signed
SHASHANK by SHASHANK
NANDAN
NANDAN BHATT
BHATT Date: 2025.02.21
15:24:46 +0530
R/o 465, T-Huts, W-139, Raghubir
Nagar, Delhi.
e) Date of Commission of : 16.06.2014
offence
f) Offence complained off : U/s 392/411/34 IPC
g) Plea of the accused : Pleaded not guilty
h) Final Order : Acquitted
i) Date of such order : 21.02.2025
JUDGMENT
(Delivered on 21.02.2025)
1. The instant matter has originated out of FIR No.654/14 PS Rajouri Garden, as per which the accused is facing trial for the offences u/s 392/411/34 IPC .
2. In nutshell, the case of the prosecution is that on 16.06.2014, at about 12:00 noon, the complainant Gaurav @ Golu was going to Axis bank, Rajouri Garden for depositing cash amounting to Rs. 49,000/- in his bank account. He reached Kukreja Hospital from his shop on a rickshaw and thereafter, he deboarded the rickshaw and started walking towards the bank. When he reached near metro pillar No. 413, two boys, aged about 20-22 years (one of whom was slightly heavy in appearance and the other one was lean in appearance), came towards him. One of the boys choked his neck and the other boy took the cash and the mobile phone (make Lava) from his pocket and fled from the spot. On the same day, at about 02:00 pm, an FIR was registered. Initially, the IO could not trace the accused, however, three days after the incident i.e. on 19.06.2014, on the basis of the CDR of the stolen phone, the IO FIR No. 654/14 PS Rajouri Garden State Vs. Rahul Kumar Page 2 of 14 Digitally signed SHASHANK by SHASHANK NANDAN NANDAN BHATT BHATT Date: 2025.02.21 15:24:54 +0530 recovered the stolen mobile phone from the accused, arrested the accused, recorded his disclosure statement, and after completion of the remaining investigation, filed the present charge sheet against the accused u/s 392/411/34 IPC. Pertinently, the IO could not trace the co-accused (whose identity was disclosed as Mangal by accused Rahul Kumar) and thus, the charge-sheet was not filed against him.
3. After the charge sheet was filed, on finding sufficient grounds to proceed against the accused, the Ld. Predecessor Judge took cognizance of the alleged offence u/s 392/411/34 IPC against the accused. Thereafter, charge u/s 392/411/34 IPC was framed against the accused, to which he pleaded not guilty and claimed trial. PROSECUTION EVIDENCE
4. In support of its case, prosecution produced four witnesses- Ret. ASI Pradeep Kumar (PW-1), Gaurav (PW-2), ASI Vivek (PW-3) and IO/Ret. SI Gurcharan Singh (PW-4).
5. Complainant/ Gaurav (PW-2) deposed that he runs a mobile shop named Bhavna Store at Raghubir Nagar, alongwith his mother. On 16.06.2014, he went to Axis Bank for depositing a sum of Rs. 49,000/- on a rickshaw. He revealed that he deboarded the rickshaw at Kukreja hospital and started walking towards the bank on foot. At about 12:00 noon, he reached A-1 Vishal Enclave, near Metro Pillar 413 and at the same time, two people, aged about 20-22 years came from behind, out of which one person choked his neck and the other person forcefully robbed the cash amounting to Rs. 49,000/- and his Lava mobile phone from the pocket of his pant and subsequently, pushed him, due to which he fell on the road. He disclosed that he chased the robbers but they successfully ran away. He added that a police personal was present at the spot, from whose phone he called his family. Thereafter, his family came to the spot and they went to the police station where his statement (Ex. PW-2/A) was recorded. He added that during investigation, he handed over the copy FIR No. 654/14 PS Rajouri Garden State Vs. Rahul Kumar Page 3 of 14 Digitally signed SHASHANK by SHASHANK NANDAN NANDAN BHATT BHATT Date: 2025.02.21 15:25:03 +0530 of the bill (Ex. PW-2/B) of his mobile phone. After two-three days he got a call from the police who informed him that his phone had been recovred and called him for identification of the phone. He also stated that after some days, he went to the police station for some work and found that the accused was in lockup and he identified him and told the IO that he is one of the persons who committed robbery with him. The witness correctly identified the accused and the case property (Ex. P-1). During cross-examination, the witness denied the suggestion that he had falsely identified the accused. He admitted that the police had called him after 3-4 days of the incident for identification of the accused.
6. Ret.ASI Pradeep Kumar (PW-1) deposed that on the date of the incident, at about 12:34 pm, he received an information regarding snatching from the control room and reduced the same into writing vide DD No. 22A (Ex. PW-1/A). He added that about 02:00 pm, Ct. Magan Singh handed over the rukka to him, on the basis of which the present FIR (Ex. PW-1/B) was registered. He also stated that he made the endorsement on rukka (Ex. PW-1/C).
7. ASI Vivek (PW-3) deposed that on 19.06.2014, he alongwith SI Gurchran Gill obtained the call details record (Mark A) by tracing the IMEI number and obtained information that number 8882638398 was functioning in the name of accused Rahul Kumar, R/o 465, T-huts, W-139 Raghubir Nagar, Delhi. He stated that he alongwith SI Gurcharan Gill reached the address, wherein they met the accused and upon his personal search vide personal search memorandum (Ex. PW-3/D) they recovered the stolen mobile phone containing a SIM and two other SIM cards from his possession. He added that the case property was seized vide seizure memorandum (Ex. PW-3/A), the accused was arrested vide arrest memorandum (Ex. PW-3/B), and the disclosure statement of the accused (Ex. PW-3/C) was recorded. He revealed that thereafter, the accused was taken to Ghodewala Mandir, Raghubir Nagar, to nab the co-accused FIR No. 654/14 PS Rajouri Garden State Vs. Rahul Kumar Page 4 of 14 Digitally signed by SHASHANK SHASHANK NANDAN NANDAN BHATT BHATT Date:
2025.02.21 15:25:11 +0530 Mangal but he was not found there. The witness correctly identified the stolen mobile phone (Ex. P-1). During cross-examination, the witness admitted that he had not shown any search warrant to the accused before searching his place. He denied that he is deposing falsely at the behest of the IO.
8. IO/Ret. SI Gurcharan Singh (PW-4) deposed that on the date of the incident he met the complainant who narrated the whole incident to him and he recorded his statement, prepared the tehrir (Ex. PW-2/A), prepared the rukka (Ex. PW-1/C) and got the FIR registered by sending Ct. Magan Singh to the police station. He added that he prepared the site plan (Ex. PW-4/A) at the instance of the complainant. He revealed that the complainant handed over the bill of the stolen mobile phone to him, which he seized vide seizure memorandum (Ex. PW-3/A) and recorded the supplementary statement of the complainant in this regard. He also obtained the CDR of the mobile phone and found the same to be working from 17.06.2014 in the name of the accused. Thereafter, he alongwith Ct. Vivek reached the house of the accused, recovered the mobile phone from him and seized the same vide seizure memorandum (Ex. PW-3/E). He added that he conducted the personal search of the accused and recorded his disclosure statement vide memorandums (Ex. PW-3/B, Ex. PW-3/C and Ex. PW-3/D). He also stated that he moved a TIP application before the concerned court, but the said proceedings failed as the complainant refused to participate in the TIP proceedings. He recorded the statement of witnesses and after completing the investigation, filed the present charge-sheet. The witness identified the case property. During cross-examination, the witness stated that the seal used by him for sealing the case property was handed over to Ct. Vivek, however, he did not make any seal handing over memorandum. He denied the suggestion that he did not conduct the investigation fairly and prepared all the documents at the police station.
9. In the statement of the accused recorded u/s 313 Cr.P.C, the accused stated that FIR No. 654/14 PS Rajouri Garden State Vs. Rahul Kumar Page 5 of 14 Digitally signed SHASHANK by SHASHANK NANDAN NANDAN BHATT BHATT Date: 2025.02.21 15:25:20 +0530 he is innocent and he has been falsely implicated in the present matter. He added that he did not commit any offence and chose to not lead defence evidence.
FINAL ARGUMENTS
10. Thereafter the matter was listed for final arguments. During the course of final arguments, Ld. APP for the state prayed that the accused be convicted in the present case as the testimony of the complainant remained unrebutted and the recovery had been proved. He also submitted that the CDR obtained by the police further establishes the fact that the accused was using the stolen mobile phone after the robbery. Per contra, Ld. LAC for the accused Ms. Surbhi Bhasin submitted that the TIP proceedings in the present matter had failed and the identification of the accused by the complainant was doubtful. It was submitted that the accused had taken the phone in question from the complainant from his shop as he had given his own phone for repair and the accused had been falsely implicated by the police. It was also argued that there was no recovery of the cash alleged to have been stolen. Thus, it has been prayed that the accused be acquitted in the present case. LEGAL POSITION QUA OFFENCE PUNISHABLE U/S 392/411/34 IPC.
11. In the present case, the accusation against the accused is that he committed the offence punishable u/s 392/411/34 IPC. Section 392 IPC, provides for the punishment of 'robbery'(which has been defined u/s 390 IPC). At the very outset, it is apposite to note that 'robbery' is an aggravated form of 'theft/ extortion' and thus, there is no gainsaying in stating that 'theft/ extortion' is the genus and 'robbery' is a specie. Since the present set of allegations against the accused pertain to commission of robbery as an extension of theft, it is important to lay down the circumstances in which 'theft' amounts to 'robbery' as laid down in Dr Hari Singh Gour's Indian Penal Code 16th Edn., Volume II, 2024, page 1644-51- "Theft becomes robbery, if in the FIR No. 654/14 PS Rajouri Garden State Vs. Rahul Kumar Page 6 of 14 Digitally signed SHASHANK by SHASHANK NANDAN NANDAN BHATT BHATT Date: 2025.02.21 15:25:26 +0530 process of committing the theft the offender causes or attempts to cause, either death, hurt or wrongful restraint". It has further been explained that "If hurt etc is caused at the time of commission of theft, but for an object other than the one referred to in Section 390 IPC, theft would not amount to robbery. It is also not sufficient that hurt has been caused in the course of the same transaction as the commission of the theft" .
12. As regards the provisions contained under Sec. 411 IPC are concerned, the same criminalizes the act of dishonestly 'receiving' or 'retaining' a stolen property (actus reus), with the 'knowledge' or 'having reason to believe' the same to be a stolen property (mens rea). Furthermore, Section 34 of the Indian Penal Code, which is based on the adage- 'they also serve who only stand and wait' , criminalizes an act done by a person in furtherance of common intention of several persons, in the same manner as if the act were done by each of such persons individually.
13. Furthermore, it is apposite to bear in mind the observations made by the Hon'ble Apex Court in Ashish Batham Vs. State of MP (2002) 7 SCC 317 wherein it has been held that:-
"Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime FIR No. 654/14 PS Rajouri Garden State Vs. Rahul Kumar Page 7 of 14 Digitally signed SHASHANK by SHASHANK NANDAN NANDAN BHATT BHATT Date: 2025.02.21 15:25:33 +0530 and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between "may be true" and "must be true" and this basic and golden rule only helps to maintain the vital distinction between "conjectures" and "sure conclusions" to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record."
14. The position of law as crystallized from the above discussion is that in criminal trials, the prosecution is expected to prove its case on the touchstone 'beyond reasonable doubt'. Mere suspicion, howsoever strong, cannot form the basis of convicting the accused, in the absence of credible oral and documentary evidence, which clearly establishes the case of the prosecution. Furthermore, mere weakness in the defence of the accused cannot substitute the requirement of proof which is expected from the prosecution in criminal trials.
FINDINGS OF THE COURT
15. Upon examining the record in light of the above legal position and factual matrix, it emerges that in the instant matter, the case of the prosecution is that at the time of alleged incident, the complainant was going to a bank for depositing cash amounting to a sum of Rs. 49,000/- and at the same time, the accused alongwith one Mangal (who could not be traced by the police) robbed the complainant of the cash amount of Rs. 49,000/- and a mobile phone (make Lava). Subsequently, the IO obtained the CDR pertaining to the IMEI number of the stolen mobile phone, after which the accused Rahul Kumar was traced and the recovery of the stolen mobile FIR No. 654/14 PS Rajouri Garden State Vs. Rahul Kumar Page 8 of 14 SHASHANK Digitally SHASHANK signed by NANDAN NANDAN BHATT Date: 2025.02.21 BHATT 15:25:41 +0530 phone was effected from his possession.
16. In order to effectively decide the present matter, the following points of determination have to be adjudicated by this Court:-
(i) Whether at the time of the alleged incident, the complainant was robbed of a cash amount of Rs. 49,000/- and a mobile phone (make Lava)?
(ii) Whether the alleged robbery was committed by accused Rahul Kumar in connivance with an untraced co-accused?
(ii) Whether the recovery of the stolen mobile phone (make Lava) was made from the possession of accused Rahul Kumar? If yes, did he have the knowledge or reasons to believe the said mobile phone to be a stolen property?
Findings with respect to point of determination no. 1
17. In order to establish the factum of robbery, the prosecution has heavily relied on the testimony of the complainant Gaurav @ Golu (PW-2), who deposed that at the time of the alleged incident, he was going to Axis Bank, Rajouri Garden for depositing a cash amounting to Rs. 49,000/- in a rickshaw. He explained that he deboarded the rickshaw at Kukreja Hospital and started walking towards the bank and when he reached near Metro Pillar No. 413, two persons approached him from behind, one of whom chocked his neck and the other forcefully took the cash amounting to Rs. 49,000/- and a lava phone from his pocket and fled the spot.
18. Pertinently, the witness remained unchallenged on the above mentioned version (pertaining to the alleged robbery) at the stage of his cross-examination. The version narrated by the complainant is further corroborated by the contents of his preliminary statement (Ex. PW-1/C) which was recorded by the IO and the contents FIR No. 654/14 PS Rajouri Garden State Vs. Rahul Kumar Page 9 of 14 Digitally signed SHASHANK by SHASHANK NANDAN NANDAN BHATT BHATT Date: 2025.02.21 15:25:48 +0530 of the FIR, both of which were recorded promptly on the very same day. Notably, the police also managed to recover one of the stolen properties i.e., the stolen mobile phone, vide recovery memorandum (Ex. PW-3/A), which further corroborates the testimony of the complainant. The contentions of Ld. LAC for the accused, who emphasized that the mobile phone was handed over by the complainant himself to the accused, in lieu of another mobile phone which the accused had deposited in the shop of the complainant for repair work, are not substantiated by any evidence whatsoever. In fact, there is absolutely nothing on record that goes on to suggest that the complainant knew the accused prior to the incident or had any previous enmity with him and thus, there is nothing on record to suggest that the complainant had any reasons to falsely implicate the accused. In these circumstances, the prosecution has sufficiently established that at the time of alleged incident, the complainant was robbed of a cash amounting to Rs. 49,000/- and a mobile phone (make Lava).
Findings with respect to point of determination no. 2
19. As discussed herein above (in point of determination no. 1), it has been sufficiently proved by the prosecution that at the time of the alleged incident, the complainant was robbed of a cash amounting to Rs. 49,000/- and a mobile phone (make Lava). The next question that falls for the consideration of this Court is whether the said robbery was committed by accused Rahul Kumar in connivance with one other co-accused (who has not been traced by the police).
20. At the very outset, it is apposite to note that apart from the complainant, no other public witness / eye witness has been produced by the prosecution to establish its case. Admittedly, the complainant did not know the accused prior to the incident and it was only during the commission of the offence, that the complainant saw the FIR No. 654/14 PS Rajouri Garden State Vs. Rahul Kumar Page 10 of 14 Digitally signed SHASHANK by SHASHANK NANDAN NANDAN BHATT BHATT Date: 2025.02.21 15:25:55 +0530 accused for the first time. Upon examining the testimony of the complainant Gaurav @ Golu (PW-2) in light of the peculiar facts of the present case, it emerges that as per the version of the complainant (during his examination-in-chief), the accused had fled the spot at the time of incident and after some days, he went to the police station for some work, where he saw the accused in the police lock-up and identified him. Contrary to the said version, during his cross-examination the witness stated that he was called to the Police station after 3-5 days of the alleged incident for the purpose of identification of the accused. In the considered opinion of this Court, both the said versions narrated by the complainant pertaining to identification of the accused are totally contradictory to each other and raise serious doubts upon the veracity of his version pertaining to identification of the accused.
21. To add to the woes of the prosecution, it is noteworthy that the complainant did not join the Test Identification Parade proceedings at the stage of investigation and identified the accused for the first time before the Court during his testimony, which was recorded on 29.11.2022 i.e., after a gap of more than six years from the date of the alleged incident, which took place on 16.06.2014. In this regard, the attention of this Court goes towards the judgment of Hon'ble Supreme Court in Venkatesha & Ors. Vs State of Karnataka 2025 LiveLaw (SC) 116 wherein it has been categorically held that- " While identification of a witness in a given case for the first time in witness box would be permissible, the substantial gap of approximately eight years raises serious concern regarding identification. If no identification parade of the unknown accused persons took place, their identification in the trial Court, for the first time would cast a serious doubt on the veracity of the prosecution's case". Upon examining the facts of the present case in light of the aforesaid observations of the Hon'ble Summit Court, it is evident that the complainant identified the witness for the first time after a gap of more than six years from the date of the alleged incident FIR No. 654/14 PS Rajouri Garden State Vs. Rahul Kumar Page 11 of 14 Digitally signed SHASHANK by SHASHANK NANDAN NANDAN BHATT BHATT Date: 2025.02.21 15:26:03 +0530 as he had not joined the TIP proceedings at the stage of investigation. As discussed hereinbefore, the circumstances in which the witness stated to have seen the accused (in the police lock-up after a few days of the incident) is also doubtful as the complainant has narrated contradictory accounts of the same.
22. In these circumstances, the identification of the accused by the complainant, which took place for the first time before the Court, after a substantial gap of more than six years from the date of the alleged incident, does not inspire the confidence of this Court and appears to be doubtful. Accordingly, in the considered opinion of this Court, the prosecution has miserably failed in establishing that the accused committed the robbery of cash amounting to Rs. 49,000/- and a mobile phone (make Lava) alongwith one Mangal (who was not traced by the police).
Findings with respect to point of determination no. 3
23. One of the primary allegations against the accused in the present matter is that one of the stolen property i.e. the mobile phone of the complainant (make Lava) was recovered from his possession. In order to establish the said fact, the prosecution has relied upon the CDR pertaining to the IMEI number of the stolen mobile phone and the testimony of the IO/SI Gurcharan Singh who recovered the case property from the accused vide recovery memorandum (Ex. PW-3/A) and the testimony of recovery witness-ASI Vivek Kumar.
24. At the very outset, it is pertinent to note that the CDR of the stolen mobile phone (Mark A) was never exhibited in evidence as the same was not signed/ stamped by the appropriate authority, nor was it filed alongwith a certificate u/s 65B of the Indian Evidence Act/ Section 63 Bharatiya Sakshya Adhiniyam. Not just this, to the utter surprise of this court, the IO did not even name the nodal officer who FIR No. 654/14 PS Rajouri Garden State Vs. Rahul Kumar Page 12 of 14 Digitally signed by SHASHANK SHASHANK NANDAN NANDAN BHATT BHATT Date:
2025.02.21 15:26:12 +0530 provided the said CDR in his testimony, nor did the prosecution produce the said officer as a witness. In these circumstances, the CDR relied upon by the prosecution has not been proved as per the requirements of the Indian Evidence Act/ Section 63 and 65 Bharatiya Sakshya Adhiniyam (specifically Section 65B and 67 of the Indian Evidence Act).
25. As regards the recovery of the stolen mobile phone vide recovery memorandum (Ex. PW-3/B) is concerned, it is pertinent to note that the prosecution has endeavored to prove the same by virtue of the sole testimony of the recovery witness ASI Vivek Kumar (PW-3). During the course of his deposition, the said witness himself stated that the recovery was made from the house of the accused which was a residential place and axiomatically, the presence of public witness near the place of recovery cannot be denied. Surprisingly, neither the IO/SI Gurcharan (PW-4) nor the recovery witness ASI Vivek (PW-3) have put forth any explanation for not joining independent public witnesses during the course of recovery despite their availability. As discussed hereinabove, the CDR (Mark-A) which prompted the IO to apprehend the accused has not been proved as per the prescribed legal norms, nor has the IO placed on record any DD Entry which reflects the fact that he left the police station for questioning the accused. Furthermore, the seal with which the case property was sealed, admittedly remained in the possession of Ct. Vivek, who was posted in the same police station as the IO and no seal handing over memorandum was prepared, which again casts an adverse effect on the case of the prosecution. Resultantly, the prosecution has miserably failed in establishing the chain of events which led to the IO getting the information about the stolen mobile phone being in the possession of the accused as well as the genuineness of the recovery as per the prescribed legal standards.
26. At this juncture, the attention of this court goes towards the judgment of FIR No. 654/14 PS Rajouri Garden State Vs. Rahul Kumar Page 13 of 14 Digitally signed by SHASHANK SHASHANK NANDAN NANDAN BHATT BHATT Date:
2025.02.21 15:26:19 +0530 Hon'ble Apex Court in M. Nageshwar Rao v. State of U.P. (2011) 2 SCC 188 wherein it has been held that "Suspicion, however strong cannot take place of proof". Furthermore, it has been laid down by the Hon'ble Apex Court in State of U.P. v. Nandu Vishwakarma (2009) 14 SCC 501 that- "When on the basis of evidence on record two views could be taken, one in the favour of the accused and the other against the accused, the one in the favour of the accused should be accepted." In the instant matter, after appreciating all the material evidences on record, this court is of the considered opinion that the identification of the accused by the complainant for the first time before the court, without participating in the Test Identification Parade proceedings at the stage of investigation, appears to be highly doubtful. Likewise, since the CDR has not been proved and the recovery was not made in the presence of public witnesses, despite their availability, the allegations against the accused qua retaining the stolen mobile phone (make Lava) are also not proved as per the prescribed legal requirements.
27. Apropos to the above discussions, this court is of the opinion that the prosecution has failed to prove its case as per the touchstone of 'beyond reasonable doubt'.
28. Consequently, accused Rahul Kumar stands acquitted of the accusation of committing the offences punishable u/s 392/411/34 IPC.
29. Bail bonds and surety bonds, if any, except furnished u/s 437A Cr.P.C stands cancelled. Case property, if any, shall be disposed off after the expiration of the period to assail the judgment and in case of appeal, as per the directions of Ld. Appellate court.
Digitally signed by SHASHANK SHASHANK NANDAN
NANDAN BHATT
Date: 2025.02.21 15:26:35
BHATT +0530
Signed & pronounced (Shashank Nandan Bhatt)
in Open Court JMFC-02/West/Delhi/21.02.2025
On the 21st February, 2025
FIR No. 654/14
PS Rajouri Garden
State Vs. Rahul Kumar Page 14 of 14