Delhi District Court
State vs Jitender Kumar Etc on 7 May, 2011
State V. Jitender Kumar Etc.
IN THE COURT OF SH. MANISH KHURANA, MM, ROHINI COURTS, DELHI
JUDGEMENT
a) The FIR of the case : 219/02
b) The date of commission of offence : 19.08.02
c) The name of the complainant : Ajay Kumar, s/o. Sh. Jagdish Prasad
d) The name, parentage, address of : 1. Jitender Kumar, s/o.Mahavir Singh, r/o. H. no. 13, Ishwar accused.
Colony, Bawana
2. Sahib Singh, s/o. Munni Ram, R/o.
Near Goshala, Bawana
3. Pawan, s/o. Rati Ram, r/o.H. no.
119 Danda Maiyanwala Chowk, Bawana
4. Sushil Kumar @ Sonu, s/o.
Munshi Ram, r/o. H. no. 103,
Dada Bhai Wala Chowk, Bawana,
Delhi
e) The offence complained of/proved : 394/34 IPC
f) The plea of the accused : Not guilty
g) Date of Institution : 31.03.03
h) The date on which the judgement was : 03.05.11
reserved
i) The final order : Acquitted
j) The date of such order : 07.05.11
k) Unique Identification No. : 02404R1011342003
Brief statement of the reasons for the decision:-
1. The case of the prosecution is that on 19.08.02 at about 12.45 a.m. at Delhi Bawana Road, DSIDC Office near Canal, Bawana, Delhi, within jurisdiction of PS Bawana all the accused in furtherance of their common intention injured the complainant Ajay Kumar while Page 1 Of pages 11 FIR no. 219/02, PS Bawana, u/s. 394/34 IPC State V. Jitender Kumar Etc. committing robbery, thereby, all the accused in furtherance of their common intention committed an offence punishable u/s. 394/34 IPC for which FIR no. 219/02 was registered at PS Bawana against all the accused persons.
2. After supply of copies u/s. 207 Cr.P.C., charge u/s. 394/34 IPC was framed against the accused to which all the accused pleaded not guilty and claimed trial.
3. In support of its case prosecution has examined seven (7) witnesses.
4. PW-1 Ajay Kumar, could not recollect the exact date and month of the incident.
However, he deposed that in the year 2002 on one night at about 12.00 o' clock when he was present at the road at Sector 16/17, Rohini with his TSR and was waiting for the passengers, four persons came to him and told him that they had to go to Village Bawana. The fare was decided at Rs. 50/- and when the TSR reached village Bawana carrying those four passengers, those persons got down from the TSR at about 12.30 a.m. and soon the altercation started on fare as they agreed to give him Rs. 50/-. During this one PCR Van came there and police official took all of them to police station Bawana, where they all were kept for the whole night and in the next morning this witness was taken for his medical examination at a hospital in Jahangir Puri. He however could not recollect if his statement was recorded by the police or not but he stated that police official had taken his signatures on some blank papers. He further deposed that even his wallet was also taken by the police official.
5. Since this witness was found to be resiling from his earlier statement made to the police, Ld. APP sought permission of the court to put leading questions to this witness.
6. During his cross examination on behalf of the State, he was read over his earlier statement made to the police. He admitted the number of his said TSR to be DL IRD 1387 and Page 2 Of pages 11 FIR no. 219/02, PS Bawana, u/s. 394/34 IPC State V. Jitender Kumar Etc. that when he alongwith his those four passengers in his TSR reached at Canal (nahar) they all asked him to stop the TSR and he did so. He however denied that when he asked fare from those four passengers, they all started beating him with fists and kicks. He also denied that those four accused snatched away his wallet and on his raising voice, one PCR Van came there and he stated all the incident to the police and all the four accused persons were apprehended by the police. He also could not tell names of those passengers. He stated that he never complained to the police against the accused persons regarding snatching of his purse. He further deposed that he never gave any statement to the police. He also denied that he was won over by the accused persons.
7. During his cross examination on behalf of the accused, he admitted that all the accused persons were apprehended when they hired his TSR, however, he denied the recovery of any stereo in his presence.
8. PW-2 S. N. Bhardwaj, Record Clerk, BJRM Hospital, produced the medical record of injured Ajay Kumar vide MLC no. 36643 dated 19.08.02 prepared by Dr. S.S. Raja which he has proved as Ex. PW 2/A and has identified the signatures of Dr. Raja at point A.
9. During his cross examination on behalf of the accused, he stated that MLC was not prepared in his presence and he was not aware of its contents.
10. PW-3 Ct. Raj Kumar, deposed that on 19.08.02 he was posted at PS Bawana as Constable. On that night at about 01.15 p.m. on receipt of a PCR Call by ASI Anand Prasad, he accompanied him to DSIDC Office near Nahar, Bawana, where PCR Van Commander 77 was present with IC Van HC Kishan Singh and he was handed over one purse containing five currency notes of 100/- each, one identity card and custody of four accused i.e. Jitender, Shahib Page 3 Of pages 11 FIR no. 219/02, PS Bawana, u/s. 394/34 IPC State V. Jitender Kumar Etc. Singh, Sunil Kumar and Pawan. Thereafter the IO ASI Anand Prasad put the said purse, currency notes and identity card in a cloth and prepared pullanda and sealed the same with the seal of AS and the same was seized vide memo Ex. PW 3/A bearing his signatures at point B. He further deposed that one stereo was also recovered from the possession of the accused which was seized vide memo Ex. PW 3/B bearing his signatures at point B. IO then prepared Tehrir and handed over the same to this witness, who took it to police station and got the case registered and returned to the spot with the copy of the FIR and original Tehrir and handed over the same to the IO. All the four accused persons were then arrested vide memos Ex. PW 3/C to PW 3/F and their personal search was conducted vide memos Ex. PW 3/G to PW 3/K bearing his signatures at points A. Thereafter he took the complainant to BJRM Hospital for medical examination and then took him to police station, where his statement was recorded by the IO.
11. He has identified the accused persons and case property correctly.
12. During his cross examination on behalf of the accused he deposed that the information was received in police station at about 01.15 a.m. through a wireless message and they went on a scooter at the spot, where he found PCR and some persons standing on the left side of the road and HC Kishan Singh handed over the purse and the stereo which was lying in the TSR to the IO. Thereafter IO prepared the seizure memo of the articles. He then deposed that before preparing the seizure memo, IO prepared the rukka. He further deposed that they remained at the spot for about two hours, however the PCR Staff had left the spot after about seven minutes after handing over the accused persons to them. He also stated that all the documents were prepared at the spot and the seal was retained by the IO himself after use. He denied that no recovery was effected from any of the accused persons or that no such incident ever took place.
Page 4 Of pages 11 FIR no. 219/02, PS Bawana, u/s. 394/34 IPC State V. Jitender Kumar Etc. He admitted that he had not seen the incident. He further deposed that he came to know about the names of the accused persons from HC Kishan Singh and from interrogation from the accused persons. He also stated that all the accused persons were arrested at 1.16 a.m. in the night but he did not know if there was any dispute on settling the fare between the complainant and the accused persons.
13. PW-4 Ct. Vishambher Dayal, deposed that in the intervening night of 18/19.08.02 he was posted at PCR NW Zone as Constable on PCR Van Comm. 77 as gunman with IC Van HC Kishan Singh having its driver Ct. Rambir. They were going to Shabad Dairy to attend a Call and at about 12.45 a.m. when they reached in front of DSIDC office near canal, they heard sounds of Bachao Bachao. They stopped their PCR Van and went to the person who was shouting, who told his name to be Ajay Kumar and pointed towards four boys fleeing from there and said that those four boys had robbed his purse containing Rs. 500/- and his Identity Card. They chased those boys and apprehended them after about 150 paces. Those four accused persons told their names as Jitender, Sushil, Sahab Singh and Pawan. During their personal search one Rexine Purse was recovered from the possession of the accused Jitender Kumar which was found containing five currency notes of the denomination of Rs. 100/- each and one Identity Card of Ajay Kumar was recovered. One stereo make Pioneer was also recovered from the possession of accused Pawan Kumar. Thereafter the information of the incident was given to the police control room wherefrom the said information was then delivered to the police station Bawana and after some time ASI Anandi Prasad alongwith Ct. Raj Kumar from PS Bawana reached at the spot. All the four accused persons alongwith recovered articles were handed over to ASI Anandi Prasad. The said purse was put in a white cloth and was sealed with Page 5 Of pages 11 FIR no. 219/02, PS Bawana, u/s. 394/34 IPC State V. Jitender Kumar Etc. the seal of AS and was then seized vide memo Ex. PW 3/A bearing his signatures at point C. Stereo was also seized vide memo Ex. PW 3/B bearing his signatures at point C. He further deposed that the further investigation was not done by him.
14. This witness has correctly identified the case property.
15. During his cross examination on behalf of accused persons he deposed that they were three persons in the PCR and that they had not received Call for this incident. He further stated that Ajay Kumar was standing on the left side of the road with his Auto, however, he could not recollect its registration number. He further deposed that they apprehended the accused persons when they were trying to escape while running towards the Pooth. He also could not tell as to which accused was apprehended first. He further stated that local police i.e. one IO and one Ct. reached after about half an hour. He further stated that first of all rukka was prepared and thereafter personal search memo of the accused was prepared. He further deposed that the accused persons, police official including five police persons went to the police Station in the same vehicle. He also could not tell if he had signed some documents at the police station. He denied that he deposed falsely or that nothing was recovered from the possession of the accused persons or that they have been falsely implicated.
16. PW-5 HC Kishan Singh deposed that on the intervening night of 18/19.08.02 when he was posted at PCR NW Zone, Delhi as HC and his duty was on PCR Van Comm. 77 as IC Van with its driver Ct. Rambir and gunman Ct. Vishambhar Dayal,. He further stated that when they were going to Shabad Dairy to attend a Call at about 12.45 a.m. and they were in front of DSIDC office near Canal, they heard the noise of Bachao Bachao and They stopped their PCR Van and went to the person who was shouting, he told his name as Ajay Kumar and pointed Page 6 Of pages 11 FIR no. 219/02, PS Bawana, u/s. 394/34 IPC State V. Jitender Kumar Etc. towards four boys fleeing from there and said that those four boys had robbed his purse containing Rs. 500/- and his Identity Card. They chased those boys and apprehended them after about 150 paces. Those four accused persons told their names as Jitender, Sushil, Sahab Singh and Pawan. During their personal search one Rexine Purse was recovered from the possession of the accused Jitender Kumar which was found containing five currency notes in the denomination of Rs. 100/- each and one Identity Card of Ajay Kumar was recovered. One stereo make Pioneer was also recovered from the possession of accused Pawan Kumar. Thereafter the information of the incident was given to the police control room where from the said information was then delivered to the police station Bawana and after some time ASI Anandi Prasad alongwith Ct. Raj Kumar from PS Bawana reached at the spot. All the four accused persons alongwith recovered articles were handed over to ASI Anand Prasad. The said purse was put in a white cloth and was sealed with the seal of AS and was then seized vide memo Ex. PW 3/A bearing his signatures at point C. Stereo was also seized vide memo Ex. PW 3/B bearing his signatures at point C. IO got the case registered through Ct. Raj Kumar. Thereafter all the four accused were arrested vide memos Ex. PW 3/C to 3/F and their personal search was conducted vide memo Ex. PW 3/G,PW3/H, PW3/J and PW 3/K respectively.
17. This witness has correctly identified the accused persons and the case property.
18. During his cross examination on behalf of the accused persons, he deposed that he could not recollect the exact time of the call about the quarrel, however, he stated that the call was received when they were near Aditi Colllege which is about 600 meters away from Bawana Chok. He also could not tell as to which accused was apprehended first and by whom. He further deposed that official from PS Bawana reached the spot after 15 minutes. He further Page 7 Of pages 11 FIR no. 219/02, PS Bawana, u/s. 394/34 IPC State V. Jitender Kumar Etc. stated that arrest memos were prepared at the spot by ASI Anandi Prasad. He also could not remember if relatives of the accused persons were informed. They remained at the spot for half an hour and thereafter they returned to Aditi College. He however could not tell if any other call was received the said night or not. He also stated the said police official from PS Bawana had come on scooter, but could not tell its reregistration number. He also stated that he had signed arrest memo, seizure memo only and thereafter he never signed any documents of this case. He also denied that he deposed falsely or that nothing was recovered from the accused persons.
19. PW-6 HC Shyam Lal deposed that on 19.08.02 when he was posted as duty officer at PS and his duty hours were from 12.00 p.m. to 08.00 a.m., at about 03.00 a.m. a rukka was sent by ASI Anand through Ct. Raj Kumar. On receipt of which he registered the present FIR. Carbon copy of the same is Ex. PW 6/A bearing his signatures at point A. he also made endorsement on the rukka Ex. PW 6/B at point A to A.
20. Opportunity to cross examine this witness was given to the accused, but to no avail.
21. PW-7 Ct. Ranvir deposed that on 19.08.02 when he was posted at PS Bawana as Ct.
driver, PCR NW Zone at about 12.45 a.m. when they were going on a PCR Call towards Shabad Dairy, they saw a hue and cry as Bacao Bachao. On seeing this Incharge of PCR directed him to stop the Van. Thereafter they met one person namely Ajay Kumar, who was shouting. On interrogation Ajay Kumar told them that four accused persons had robbed his valet and I Card including five hundred rupees in cash and had gone towards DSIDC. They noticed the said accused persons at a distance and apprehended them. He further stated he had kept sitting in the Van during all the proceedings.
Page 8 Of pages 11 FIR no. 219/02, PS Bawana, u/s. 394/34 IPC State V. Jitender Kumar Etc.
22. During his cross examination on behalf of the accused persons he deposed that they had received a call about a quarrel and at that time, they were standing near Bawana Chowk, Bharti College. He further stated they were three persons in the PCR Van and the complainant Ajay was coming from the opposite side to the said PCR and was on foot. He could not say if he had any vehicle or not. The police offical from PS Bawana came after about 20 minutes on a motorcycle. He could not tell as to which document was prepared first or did he sign any document. He again said that he had perhaps signed only his statement.
23. Thereafter prosecution evidence was closed and accused persons were examined U/s 313 Cr.P.C. and all the incriminating evidence coming on record were put to the accused persons .
24. The accused persons stated that they were innocent and have been falsely implicated in this case and denied for leading DE.
25. I have heard Ld. APP for State and counsel for the accused persons and perused the record.
26. I have given a considered thought to the rival submissions made by Ld. APP for the state and Ld. Counsel for accused keeping in view the material available on the judicial file.
27. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further it is a settled proposition of the criminal law that in order to prove its case on judicial files prosecution is supposed to stand on its own legs and it cannot drive any benefit whatsoever from the weakness if any in the defence of the accused. The burden of proof of the version of the prosecution in a criminal trial through out the trial is on the prosecution and its never shifts Page 9 Of pages 11 FIR no. 219/02, PS Bawana, u/s. 394/34 IPC State V. Jitender Kumar Etc. to the accused. The accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubts entitles the accused to acquittal.
28. In this case all the accused persons have been charged with the offence u/s 394/34 IPC which provides causing hurt while committing robbery. It reads whoever in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempt in to commit such robbery, shall be punished with Imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
29. PW-1 Ajay Kumar who is the victim and the complainant in the present case is the sole material witness did not corroborate the story of the prosecution and rather he has stated completely different story of a arguments having taken place between him and the accused persons on the point of fare as they had fixed the fare at Rs. 50/- which seems to be main point of dispute as per his statement. Moreover, he, in his statement, nowhere states about being robbed by the accused persons. Even he has not supported the version of prosecution in terms of recovery of any purse and stereo from the accused persons. Thus it is seen that as far as the star witness is concerned he has nowhere supported the case of the prosecution.
30. All the remaining witnesses are formal in nature and their testimonies are not sufficient to prove the guilt of the accused. No where in the evidence it is proved by the prosecution that accused committed robbery as the complainant Ajay Kumar stated that some arguments took place between him and accused persons and on this police took him alongwith accused persons to PS Bawana and kept them for the whole night. During his cross examination by Ld. APP for the State the complainant denied that when he asked the fare from accused persons all of them Page 10 Of pages 11 FIR no. 219/02, PS Bawana, u/s. 394/34 IPC State V. Jitender Kumar Etc. started beating him. He also denied that one of the accused snatched his purse containing his I Card and Rs. 500/- cash. He also denied that after snatching the purse all the accused persons started running away from there and on raising voice by him, PCR Van reached there and accused persons were apprehended. He also stated that he never complained to the police against the accused persons regarding snatching of his purse.
31. No other public witness except the complainant was made a witness to the incident.
Hence, considering the testimony of PW-1 Ajay, who is also the complainant and the eye witness, it is clear that none of the accused committed robbery and none of the ingredients of sec 394 IPC is proved on record by the prosecution.
32. Thus, in view of the above, I am of the considered opinion that the prosecution has miserably failed to prove the occurrence of robbery and hurt caused to the victim Ajay Kumar by the accused persons . Hence all the accused are hereby acquitted for the offence u/s 394/34 IPC.
ANNOUNCED IN THE OPEN COURT
TODAY ON 7th Day of May 2011 (MANISH KHURANA)
METROPOLITAN MAGISTRATE
Rohini/ DELHI 07.05.11
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FIR no. 219/02, PS Bawana, u/s. 394/34 IPC