Delhi District Court
State vs . Manish And Another on 16 January, 2019
IN THE COURT OF O. P. SAINI: ADDL. SESSIONS JUDGE/SPL.
JUDGE (CBI04), PATIALA HOUSE COURT, NEW DELHI
Old SC No. 13745/2018
New SC No. 53/2018
State Vs. Manish and Another
FIR No. 73/2018
U/s: 392/397/411/34 IPC
PS: Vasant Kunj (North)
1. Date of Institution : 07.05.2018
2. Date of Commencement
of Final Arguments : 16.01.2019
3. Date of Conclusion of
Final Arguments : 16.01.2019
4. Date of Reserving Order : 16.01.2019
5. Date of Pronouncement : 16.01.2019
6. Whether Acquitted or
Convicted? : Both accused acquitted.
Present: Sh. Pradeep Kumar, Addl. PP for the State.
Accused Manish and Sukhbir @ Subbir on bail with Sh.
Umakant Kataria, Advocate.
JUDGMENT
Brief Facts of the Case The instant case was registered on 09.02.2018 on the allegations that on that day at about 03:00 PM, when complainant ___________________________________________________________________________ State Vs. Manish and Another FIR No. 73/2018, PS: Vasant Kunj (North) Page 1 of 12 Sh. Dinesh Kumar Pandey, while on way to Vasant Kunj, was answering natural call at Nelson Mandela Marg by parking his motorcycle on the roadside, two accused along with juvenile Ritik, came on a motorcycle and stopped their motorcycle near the motorcycle of the complainant. Two of the accused got down from the motorcycle and one kept sitting on it. The two boys, who had got down from the motorcycle, asked the complainant to handover whatever he was having in his possession and one of them caught hold of him and other slapped him and also pointed out a knife at him. The accused robbed him of Rs.2000/ and a mobile phone. The complainant raised a hue and cry and some people collected over there and accused Manish was caught on the spot. However, two accused, namely, Sukhbir and Ritik Raghav, the juvenile, who is facing trial before Juvenile Justice Board (JJB), managed to run away from the spot. One of the passersby made a telephonic call to the police. After some time, police reached the spot and accused Manish was handed over to the police. Statement of complainant was recorded, which led to the registration of the instant case.
A little before that, the three accused had also robbed one more person, namely Ram Avtar, of some of his money at knife point at Nelson Mandela Marg itself and he also reached there and narrated his version to the police.
2. During investigation, all three accused were arrested, recovery of one mobile phone, one motorcycle used by the ___________________________________________________________________________ State Vs. Manish and Another FIR No. 73/2018, PS: Vasant Kunj (North) Page 2 of 12 offenders, cash of Rs.1300/ and a knife was effected from accused Sukhbir, accused were arrested, statements of witnesses were recorded, investigation was completed and charge sheet was filed.
Committal of Case and Framing of Charge
3. On completion of formalities under Section 207 CrPC, the case was committed to the Court of Sessions on 22.05.2018.
4. Vide order dated 04.06.2018, my learned predecessor was pleased to frame charges under Section 392/34 IPC against accused Manish and Sukhbir @ Subbir, to which they pleaded not guilty and claimed trial.
Charge under Section 397 IPC, for use of knife, was also framed against accused Sukhbir @ Subbir, to which he also pleaded not guilty and claimed trial.
Charge under Section 411 IPC, was also framed against accused Sukhbir @ Subbir for possessing stolen money of Rs. 1300/, to which he also pleaded not guilty and claimed trial.
Evidence of the Prosecution
5. In support of its case, the prosecution has examined eight witnesses in all.
6. PW 1 is complainant Sh. Dinesh Kumar Pandey. He has deposed about the incident took place with him, in which he was robbed of Rs.2000/. However, he has denied that accused Manish ___________________________________________________________________________ State Vs. Manish and Another FIR No. 73/2018, PS: Vasant Kunj (North) Page 3 of 12 and Sukhbir were involved in the incident. He has also denied that accused Manish was caught on the spot. He has given up the prosecution case in its entirety.
7. PW 2 is HC Rajpal, who was working as Duty Officer in Police Station Vasant Kunj (North) on 09.02.2018. On receipt of rukka sent by SI Shubhendu Sharma, he recorded the FIR, Ex PW 2/B, made endorsement, Ex PW 2/A, on the rukka and also issued certificate, Ex PW 2/C, under Section 65B Evidence Act.
8. PW 3 is HC Subhash, who was working as Duty Officer in Police Station Vasant Kunj (North) on 09.02.2018 from 08:00 AM to 04:00 PM. On receipt of information about incident of robbery, he recorded DD No. 33A, Ex PW 3/A.
9. PW 4 is HC Mahender Kumar. He joined the investigation of the instant case on 09.02.2018 with IO SI Shubhendu Sharma. He deposed that accused Sukhbir was arrested vide arrest memo, Ex PW 4/A, and his personal search was conducted vide memo, Ex PW 4/B, and during search, Rs.1300/, Ex P3, were recovered from right side pocket of his pant, which was seized vide memo, Ex PW 4/C. He also deposed that disclosure statement of accused Sukhbir was recorded vide memo, Ex PW 4/D, and on disclosure, knife, Ex P1, was recovered from his jhuggi, sketch, Ex PW 4/E, of the knife was prepared and the same was sealed and seized vide Ex PW 4/F and a Samsung phone, Ex P2, was also recovered from his jhuggi, which was also seized vide ___________________________________________________________________________ State Vs. Manish and Another FIR No. 73/2018, PS: Vasant Kunj (North) Page 4 of 12 memo, Ex PW 4/G.
10. PW 5 is Sh. Ram Avtar, a person who was also robbed a little before the incident with PW 1 Sh. Dinesh Kumar Pandey. He deposed that on the date of incident he was going to Munirka and when he reached near Vasant Kunj on his cycle, three persons came on a motorcycle and stopped it in front of his cycle. One of them picked up a knife from his cycle, as he is a knife seller, pointed it out at him on his chest and took Rs.700800/ from his pocket and also snatched his mobile phone. He also deposed that after this these three persons had also robbed one more motorcyclist. He identified accused Sukhbir and Manish as the persons involved in the incident. He also deposed that accused Manish was caught on the spot and his personal search was conducted vide memo, Ex PW 5/A.
11. PW 6 is Ct. Vishwabandhu. He joined the investigation of the case on 09.02.2018 and in his presence, IO SI PW 7 Shubhendu Sharma recorded the disclosure statement, Ex PW 6/A, of accused Manish.
12. PW 7 is IO SI Shubhendu Sharma. On 09.02.2018, on receipt of information about the incident vide DD No. 33A, Ex PW 3/A, he went to the spot at Nelson Mandela Marg, where complainant Sh. Dinesh Kumar Pandey met him. There, PCR officials were also present and they handed over to him accused Manish. He recorded the statement, Ex PW 1/A, of complainant ___________________________________________________________________________ State Vs. Manish and Another FIR No. 73/2018, PS: Vasant Kunj (North) Page 5 of 12 Sh. Dinesh Kumar Pandey, made endorsement, Ex PW 7/A, thereon and got the instant case registered. He arrested accused Manish. He also prepared site plans, Ex PW 7/B and C, where the incidents had taken place with Sh. Dinesh Kumar Pandey and Sh. Ram Avtar. On 10.02.2018, he arrested accused Sukhbir and effected recovery of cash, knife and a mobile phone. He also got the TIP of accused Sukhbir conducted, wherein he refused to join the TIP and his application is Ex PW 7/D and the TIP proceedings are Ex PW 7/F. He also got the TIP of the mobile phone conducted vide application Ex PW 7/E, which was identified by Sh. Ram Avtar and the TIP proceedings are Ex PW 7/G. He has also identified the other case property. On other points, he has deposed on the same lines as deposed to by PW 4 HC Mahender Kumar. He recorded the statements of witnesses, completed the investigation and filed the charge sheet.
13. PW 8 is Ct. Ranjan. He joined the investigation of the case on 09.02.2018 with IO SI PW 7 Shubhendu Sharma. He has deposed on the same lines as deposed to by PW 7 Shubhendu Sharma.
Statement of the Accused and Defence Evidence
14. Statements of the accused were recorded under Section 313 CrPC, wherein they denied the allegations against them to be incorrect and submitted that they have been falsely implicated in ___________________________________________________________________________ State Vs. Manish and Another FIR No. 73/2018, PS: Vasant Kunj (North) Page 6 of 12 this case and are innocent. They did not lead evidence in their defence.
Submission of the Parties
15. It is submitted by learned Addl. PP that though complainant PW 1 Sh. Dinesh Kumar Pandey has not supported the prosecution case yet PW 5 Sh. Ram Avatar has identified both the accused as the persons who were involved in the incidents of robbery. It is submitted that accused Manish was caught on the spot. It is further submitted that recovery of robbed mobile phone and knife has been effected from accused Sukhbir. It is further submitted that the accused refused to join the TIP and as such adverse inference may be drawn against them. It is further submitted that on the basis of the statement of Ram Avatar and the recovery effected from accused Sukhbir and the fact that the accused refused to join the TIP, prosecution has been successful in proving its case or robbery against the two accused beyond reasonable doubt.
On the other hand, it is submitted by learned defence counsel that complainant PW 1 Sh. Dinesh Kumar Pandey has disowned the prosecution version in its entirety. It is further submitted that he has not identified the two accused as the one, who were involved in the incident. It is further submitted that PW 5 Sh. Ram Avatar was a victim of some other incident, but the ___________________________________________________________________________ State Vs. Manish and Another FIR No. 73/2018, PS: Vasant Kunj (North) Page 7 of 12 police manipulated the facts and has annexed that incident to the instant case. It is further submitted that police has manipulated the facts and the testimony of PW 5 Sh. Ram Avatar does not carry any value in the eyes of law, more so, when no charge has been framed about the incident, which happened with Sh. Ram Avatar. It is submitted that the prosecution cannot change its version at this stage. It is further submitted that there is clear contradiction between the testimony of PW 5 Sh. Ram Avatar and PW 1 Sh. Dinesh Kumar Pandey. It is further submitted that PW 5 Sh. Ram Avatar has also not identified the knife, Ex P1, used in the incident. It is repeatedly submitted that the entire case has been manipulated by the police and the accused have been falsely implicated in this case, more so, when the main witness has not identified the accused. It is prayed that both accused may be acquitted, as there is no incriminating evidence against them.
Discussion and Decision
16. The instant case was registered on the complaint, Ex PW 1/A, of complainant PW 1 Sh. Dinesh Kumar Pandey. However, Sh. Dinesh Kumar Pandey has disowned the prosecution version and denied that the two accused were involved in the incident. He denied categorically that the two accused were involved in the incident.
17. However, PW 5 Sh. Ram Avatar was also a victim of ___________________________________________________________________________ State Vs. Manish and Another FIR No. 73/2018, PS: Vasant Kunj (North) Page 8 of 12 similar incident on 09.02.2018 at Nelson Mandela Marg, but the police did not register any separate case and annexed his complaint with this case without pointing out that it was a separate incident. He has deposed that accused Sukhbir and Manish were involved in the incident of robbery with him. He also deposed that these persons after robbing him also robbed a motorcyclist, that is, PW 1 Sh. Dinesh Kumar Pandey. However, Sh. Dinesh Kumar Pandey has denied the involvement of these two accused in the incident. However, the case of the prosecution is that Ram Avatar was also robbed by the two accused, but the tone and tenure of the charge sheet is that only Sh. Dinesh Kumar Pandey was robbed and Sh. Ram Avatar was witness to that and charge was framed by my learned Predecessor on these lines alone. Any other reading of the evidence at this stage would amount to change of the prosecution case at the end of the trial. A criminal case cannot be changed even midway, what to talk of the final stage. In this regard, it is instructive to take note of the relevant case law.
In an authority reported as Bhagirath Vs. State of MP, (1976) 1 SCC 20, wherein while dealing with a similar situation, it was observed in paragraph 15 by the Hon'ble Supreme Court as under:
"It is well settled that the prosecution can succeed by substantially proving the very story it alleges. It must stand on its own legs. It cannot take advantage of the weakness of the ___________________________________________________________________________ State Vs. Manish and Another FIR No. 73/2018, PS: Vasant Kunj (North) Page 9 of 12 defence. Nor can the court on its own make out a new case for the prosecution and convict the accused on that basis."
Similarly, in an another authority reported as Devi Lal and another Vs. State of Rajasthan, 1971 (3) SCC 471, Hon'ble Supreme Court observed in paragraph 11 as under:
"In the present case, it appears that the core of the prosecution case that Brijlal and Nathu carried guns and were present at the bus stand and that Nathu shouted that the enemies should be attacked and that Nathu fired the gun was disbelieved. A new prosecution case could not be reconstructed in the manner suggested in the judgment of the High Court......"
(All underlinings by me for supplying emphasis).
18. Not only this, there is direct conflict between the deposition of two witnesses, namely, Sh. Dinesh Kumar Pandey and Sh. Ram Avatar. One says that the two accused were involved in the incident, while other denies it. Sh. Ram Avatar has also changed his version as to which of the accused had used the knife. In his statement to the police, he had stated that the knife was used by accused Sukhbir, but in the Court he deposed that the knife was used by juvenile Ritik, who was sent for trial to JJB. PW 5 Sh. Ram Avatar has also denied that knife, Ex P1, was used in the incident. He said that this was not the knife pointed out at him.
___________________________________________________________________________ State Vs. Manish and Another FIR No. 73/2018, PS: Vasant Kunj (North) Page 10 of 12
19. The aforesaid contradictions in the case get compounded by the fact that two separate and independent incidents were wrongly clubbed together by the police. The incident, which took place with PW 5 Sh. Ram Avatar was deliberately minimized, leading to nonframing of charge on his allegations, as it was made to appear that PW 5 Sh. Ram Avatar was a witness to the incident which took place with PW 1 Sh. Dinesh Kumar Pandey and he was not a victim of separate incident. Manipulation and exaggeration of facts, false implication and making embroidery in the case cannot be ruled out.
20. In view of the fact that the main complainant of the case, on whose complaint the instant case was registered and charges were framed, has not supported the prosecution version and there are contradictions in the deposition of PW 1 Sh. Dinesh Kumar Pandey and PW 5 Sh. Ram Avatar and Sh. Ram Avatar itself has changed his version regarding the role played by the accused and identification of the knife, there is serious doubt about the truthfulness of the version of Sh. Ram Avatar.
21. Prosecution has thus failed to prove its case beyond reasonable doubt. Accordingly, both accused are granted the benefit of doubt and are acquitted.
22. Knife, Ex P1, is forfeited to the State to be disposed of after the time of appeal is over. PW 1 Sh. Dinesh Kumar Pandey has not identified the cash of Rs.1300/ recovered from accused ___________________________________________________________________________ State Vs. Manish and Another FIR No. 73/2018, PS: Vasant Kunj (North) Page 11 of 12 Sukhbir and accused has claimed that it belongs to him and was wrongfully seized by the police. Since the victims have not identified and claimed it, the same be returned to accused Sukhbir. Mobile phone of Sh. Ram Avatar has already been returned. Motorcycle seized in the case is already with accused Manish. Superdari bond, if any, stands cancelled.
23. Bail bonds of the accused are cancelled and their sureties are discharged. Endorsement, if any, be cancelled. Documents, if any, be released against proper signatures of the sureties.
24. As per the provisions of Section 437A CrPC, accused are directed to furnish personal bond in the sum of Rs.10,000/ respectively with one surety in like amount to appear before Hon'ble Appellate Court, as and when they receive notice of appeal.
25. File be consigned to Record Room.
Announced in open Court (O. P. Saini)
today on 16.01.2019 Addl. Sessions Judge/
Spl. Judge (CBI04)
New Delhi
___________________________________________________________________________ State Vs. Manish and Another FIR No. 73/2018, PS: Vasant Kunj (North) Page 12 of 12