Delhi District Court
State vs . Sonu @ Mulla & Ors. on 17 May, 2017
IN THE COURT OF SH. KISHOR KUMAR, MM-03, SOUTH
WEST DISTRICT, ROOM NO.211, DWARKA COURTS,
DELHI.
FIR No. : 473/13
U/s : 392/411/34 IPC
P.S. : Bindapur
State Vs. Sonu @ Mulla & Ors.
JUDGMENT:
a) Sl. No. of the Case : 130/6 & 427682/16
b) Name & address of the : Sh. Bipin Kumar Jha
complainant. S/o Sh. Uday Chander Jha
R/o RZD-54B, Pratap
Garden, Uttam Nagar, New
Delhi.
c) Name & address of : 1.) Sonu @ Mulla @ Aslam
accused S/o Sh. Munna Khan
R/o B-501, Hastal, JJ
Colony, Uttam Nagar, New
Delhi.
2.) Yogdutt @ Kochar
S/o Sh. Pawan Kumar
R/o A-459, Hastal, JJ
Colony, Uttam Nagar, New
Delhi.
d) Date of Commission of : 30.09.2013
offence
e) Offence complained off : U/s 392/411/34 IPC
f) Plea of the accused : Pleaded not guilty.
FIR No: 473/13 State v. yogdutt & Ors. Page No.1/19
g) Final Order : Acquitted
h) Date of such order : 17.05.2017
Date of Institution : 18.12.2013
Final Arguments heard on : 16.05.2017
Judgment Pronounced on : 17.05.2017
BRIEF STATEMENT OF REASONS FOR DECISION: -
1. Briefly stated, case of the prosecution is that on 30.09.2013 at about 11:45 pm at Old Pankha Road, near Himalaya Sagar Restaurant, Bindapur, New Delhi, both the accused persons grabbed hold of complainant Vipin Kumar and committed robbery of his gold ring, two mobile phones and his wallet containing Rs.400/-, credit card and debit card. Police recorded the statement of complainant Vipin Kumar on the basis of which present FIR was registered and the investigation was carried out.
2. After investigation, challan for offence U/s 392/411/34 IPC was filed. Compliance of Section 207 Cr.P.C was done.
3. Charge for committing the offences punishable under FIR No: 473/13 State v. yogdutt & Ors. Page No.2/19 Section 392/34 IPC was framed against the accused persons on 27.01.2014, to which they pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined as many as eleven witnesses.
5. PW1 Narender Kumar deposed that On 30.09.2013 he was coming from his office party. Thereafter, he reached metro station Uttam Nagar East at about 11:30 PM to 11:40 PM. When he reached Himalaya Sagar Resturant, then somebody caught him from behind. They caught his neck and he found that two persons were there. One person told the other to take out his ring on which the other person took out his gold ring from his finger and that person also took two mobile phones from his pocket i.e., one was of Micromax Canvas and another Samsung Duos. The person who had caught his neck had took out his purse from his pant in which Rs.400/-, credit card, debit card and PAN cards were FIR No: 473/13 State v. yogdutt & Ors. Page No.3/19 there. Thereafter PW1 went to his house where his brother was present to whom he told the incident. Thereafter PW1 came back with him at the spot as they did not know about the concerned police station. There they informed to the police at 100 number. Police arrived there and recorded his statement Ex.PW1/A. PW1 had also given the papers of mobile phones to the police. Later on the police had informed PW1 that the accused has been caught and then he went to Tihar Jail where he identified the accused persons who had robbed him. PW1 also proved the TIP proceedings Ex.PW1/B and Ex.PW1/C. The police had also informed PW1 that the accused has also told them to get the gold ring recovered on which on 29.10.2013 PW1 alongwith the accused and police went to the house of the accused i.e., in J.J. Colony where the accused got the gold ring recovered from one beg from his house. Upon seeing the ring, PW1 identified the ring being his. Thereafter, police seized the ring by putting it in a Dibbi and sealed it vide ExPW1/D. FIR No: 473/13 State v. yogdutt & Ors. Page No.4/19
6. PW2 HC Bhoop Singh joined the investigation with SI Shakti Singh who interrogated the accused persons and recorded their disclosure statement Ex. PW2/A and Ex. PW2/B.
7. PW3 ASI Roop Singh is the Duty Officer who recorded the present FIR Ex. PW3/A and made endorsement Ex. PW3/B.
8. PW4 HC Jai Singh and PW5 Ct. Mahesh proved the disclosure memo Ex. PW4/A of case FIR No.576/13, PS Dabri.
9. PW6 Ct. Shish Pal Singh joined the investigation with IO SI Rakesh who arrested both the accused persons vide Ex. PW6/A and Ex. PW6/B, conducted their personal search vide Ex. PW6/C and recorded their disclosure statements Ex. PW6/E and Ex. PW6/F.
10. PW7 Ct. Lokender also joined investigation with IO SI FIR No: 473/13 State v. yogdutt & Ors. Page No.5/19 Rakesh Kumar who seized the gold ring vide seizure memo Ex. PW1/D.
11. PW8 Ct. Sunil took the rukka from the spot to the PS and got the present case registered.
12. PW9 SI Manmohan Yadav was from PS Dabri who recorded disclosure of accused Yogdutt Ex. PW4/A and got the DD No. 32A Ex. PW9/A registered in the PS Bindapur to this effect.
13. PW10 SI Shakti interrogated both the accused persons in the present case by moving application for production of accused. Disclosure statement Ex. PW2/B of accused Aslam @ Sonu was recorded.
14. PW11 SI Rakesh Kumar is the IO of this case. He deposed that on 01.10.2013, on receipt of DD No.7A Ex. PW3/A, PW11 along with Ct. Sunil went to the spot near FIR No: 473/13 State v. yogdutt & Ors. Page No.6/19 Himalaya Sagar Restaurant where they met complainant Vipin Kumar Jha whose statement was recorded by PW11 Ex. PW1/A. PW11 prepared the rukka Ex. PW11/A and same was handed over to Ct. Sunil who went to the PS and got the case registered and came back with the copy of FIR and original rukka and handed over same to PW11. He prepared the site plan Ex. PW11/B on the instance of complainant. Thereafter, efforts were made for the apprehension of the accused persons but in vain. Thereafter two mobile numbers of the complainant were put on surveillance. On 21.10.2013, SI Shakti Singh, PS Bindapur, informed PW11 about the apprehension of two accused persons namely Sonu and Yogdut in FIR No.411/13, who had confessed about their involvement in the present case. Thereafter, PW11 formally interrogated both the accused persons in the PS and thereafter, they were formally arrested in the PS itself in the presence of Ct. Shishpal. PW11 also recorded the disclosure statement of both accused persons. Thereafter, at the instance of both accused persons, pointing out memo FIR No: 473/13 State v. yogdutt & Ors. Page No.7/19 was prepared. On 26.10.2013, both accused persons were correctly identified by the complainant in their TIP at Tihar Jail. On 29.10.2013, at the instance of accused Sonu, one gold ring belonging to the complainant was got recovered from his house in the presence of the complainant and Ct. Lokender. The complainant identified the aforesaid gold chain as the one which was robbed from him. The said gold ring was converted into a pulanda and taken into police possession and the said pulanda was sealed with the seal of RK. PW11 also proved the documents i.e. arrest memo of both the accused Ex. PW6/A and PW6/B, their personal search memos Ex. PW6/C and PW6/D, disclosure statement of both the accused Ex. PW6/E and PW6/F, pointing out memo Ex. PW6/G and the seizure memo of the case property Ex. PW1/D. He also proved the case property Ex. P-
1.
15. After completion of prosecution evidence, all the incriminating evidence was put to accused persons U/s 313 FIR No: 473/13 State v. yogdutt & Ors. Page No.8/19 Cr.P.C and their explanation was recorded. They denied all the incriminating evidence against them.
16. I have heard Ld. APP for the State, Ld Counsel for the accused persons and have carefully gone through the record.
17. After incident, complainant, went to his house, narrated the incident to his brother. They came back at the spot. From there, brother of the complainant made call at No.100, upon which DD No.7A Ex. PW3/A dated 01.10.2013 was recorded. In that call, brother of the complainant had stated that two rings, one mobile, purse, credit and debit card and Rs.400/- were robbed from him. Thereafter, police reached at the spot, the complainant was taken to the PS where he gave statement/complaint Ex. PW1/A.
18. With all these facts, the complainant has been examined as PW1 in the Court who has stated that on the FIR No: 473/13 State v. yogdutt & Ors. Page No.9/19 date, time and place of the incident, two persons robbed him of gold chain, two mobile phones, credit card, debit card, Rs.400/- and PAN Card also. Later on, the complainant was informed by the police that accused has been caught. Thereafter, the complainant went to Tihar Jail where he identified the accused persons as the perpetrators of the crime.
19. The complainant/PW1 has been cross examined by Ld. Legal Aid Counsel wherein he deposed that he had not given any bill of gold ring to the police. The call was made to the police by his brother in his presence. His brother had not stated that two rings were robbed. It is correct that there was darkness at the spot, but this witness has clarified that some light was available near the spot. The complainant did not make any hue and cry at the time of incident. He again volunteered that he was shocked because of incident, as such did not make any noise. He did not ask any person near the spot to help him out or to call the police. The spot FIR No: 473/13 State v. yogdutt & Ors. Page No.10/19 is a public place and public used to visit there till 12 mid night. The statement of brother of the complainant was not recorded by the police at any point of time. He had gone through his statement recorded by the police. He said he called the police, again said, he did not remember who called the police. The complainant had gone to the PS along with police who had come at the spot. There he put his signatures on some documents. He again said that he signed only one document in the PS. But he did not remember, how many signatures he put on the said document. The complainant further deposed that he did not give any description of the accused as he could not see the same at the time of incident. The accused were not shown to him in the PS nor any photographs of the accused persons were shown. The police did not bring him at the spot at any point of time after registration of the FIR. After about one month, police informed him about recovery of his articles. He was shown the ring at the house of the accused. FIR No: 473/13 State v. yogdutt & Ors. Page No.11/19
20. PW11 SI Rakesh Kumar has deposed in his examination in chief that he prepared the site plan Ex. PW11/B at the instance of the complainant. It is seen from the file that the site plan Ex. PW11/B does not bear signatures of the complainant anywhere. The complainant has also deposed in his cross examination that the police did not bring him at the spot at any point of time after registration of the FIR. This piece of evidence clearly suggests that the site plan Ex. PW11/B has been prepared by the IO without going at the spot. It is sufficient enough to dent the case of the prosecution. Furthermore, the complainant has deposed in his cross examination that he had not given any description of the accused as he could not see the same at the time of incident. In his complaint Ex. PW1/A, the complainant has stated that the robbers were in the age group of 25-30 years. But when he was examined in the Court as PW1, he had not at all deposed about the age group of the alleged robbers. The incident in the present case had taken place on 30.09.2013 at about 11:45 pm whereas the accused FIR No: 473/13 State v. yogdutt & Ors. Page No.12/19 Yogdutt was arrested by the police of PS Dabri on 18.10.2013. His disclosure was recorded wherein he allegedly confessed of having committed the present offence along with his friend/co-accused Aslam @ Sonu. Later on the said accomplice Sonu @ Mulla was also arrested. On 26.10.2013, both accused persons were identified by the complainant in TIP at Tihar Jail. As a matter of fact, accused Yogdutt was arrested on 18.10.2013 by the police of PS Dabri whereas the accused Sonu @ Mulla @ Aslam was arrested on 21.10.2013. Thereafter, the accused persons were taken on police remand consequent to that accused Sonu @ Mulla led them to his house at B-501, JJ Colony, Hastsal, Uttam Nagar from where he took out one bag and from which he took out one golden color ring. The said ring was identified by the complainant as his own. Thereafter, the said ring was put in a plastic container and a pulanda of white cloth and plastic container was put in it and sealed with the seal of RK. Statement of complainant was also recorded. These are the facts deposed by PW7 Ct. FIR No: 473/13 State v. yogdutt & Ors. Page No.13/19 Lokender.
21. PW7 has been cross examined by Ld. LAC. He did not remember whether IO had joined any public person in the investigation. IO did not join any family member of the accused in investigation. No pointing out memo was prepared. Photographs of the case property were also not taken in the presence of witness PW7.
22. PW9 SI Manmohan Yadav when cross examined, deposed that he remained at the spot for about an hour. He admitted that there were number of public persons at the spot. He asked about 5-10 public persons to join the investigation, but they declined. No notice was served upon such person.
23. PW10 SI Shakti in his cross examination admitted that no public person was joined in investigation of FIR No.411/13 except the complainant. He did not prepare any site plan of FIR No: 473/13 State v. yogdutt & Ors. Page No.14/19 place of arrest of accused.
24. PW11 SI Rakesh Kumar is the IO of the case. When cross examined by Ld. Defence counsel, he deposed that no formal notice was served upon public person to join investigation when case property was recovered at the instance of accused Sonu in his presence. Complainant did not hand over any ownership proof of the recovered gold ring. He did not examine brother of the complainant. He also did not remember whether complainant told the description of accused persons to him at the time when he prepared the rukka. After preparation of site plan, the complainant came to the PS as his house was nearby. No public person was present at the time of recovery of case property except the complainant. Complainant did not sign any document in the PS pertaining to the present case. Both accused persons were already arrested by another IO in another case. He might have prepared the dossier of accused persons.
FIR No: 473/13 State v. yogdutt & Ors. Page No.15/19
25. After going through the statement of the prosecution witnesses and particularly that of the complainant, major contradictions and inconsistencies are found out and the recovery of the alleged robbed ring is doubtful. The complainant, in categorical terms has deposed in the court that he signed some documents in the PS, but the IO of the case has deposed that the complainant did not sign any document in the PS. The preparation of site plan allegedly at the instance of complainant is doubtful as complainant has deposed that he was never brought to the spot after registration of FIR whereas the IO has stated that the site plan Ex. PW11/B was prepared at the instance of the complainant. The accused persons were arrested much before many days when the TIP was conducted. They were arrested in some other cases. In the PS their dossiers might have been prepared. The complainant was called at the PS and hence it cannot be ruled out that the accused persons were not shown to the complainant in the PS itself. If such is the scenario then the identification of accused persons in TIP FIR No: 473/13 State v. yogdutt & Ors. Page No.16/19 proceedings is not of much significance. Here it is added that the complainant himself has deposed in his cross examination that he did not give any description of the accused as he could not see the same at the time of incident.
26. Now coming to another aspect of recovery of the alleged robbed ring at the instance of accused Sonu from his house, admittedly no independent public person was joined to the alleged recovery from the house of the said accused. Even the family members of the said accused were not made or offered to become the witness to the recovery of alleged robbed ring allegedly pertaining to the complainant. The complainant had not furnished any proof of the ownership of the alleged robbed ring Ex. P-1. No site plan of the house of the accused from whose house the alleged robbed ring was recovered was prepared by the IO. A major link is found missing in the evidence adduced by the prosecution on record that brother of the complainant who FIR No: 473/13 State v. yogdutt & Ors. Page No.17/19 made call at No.100 upon which DD No.7A was recorded, has neither been cited as witness in the list of witnesses nor the prosecution examined the brother of the complainant at all. In DD No.7A Ex. PW3/A, brother of the complainant has alleged of robbing of two rings whereas when complainant examined in the court disputed this fact and stated that it was only one ring. Furthermore, neither in the complaint nor anywhere else the complainant has given the description of the alleged robbed ring allegedly belonging to him. For want of any documentary ownership proof thereof, it is doubtful if really the alleged robbed ring Ex. P-1 belonged to the complainant. No TIP of the alleged robbed ring was got conducted by the IO. It may be for the reason that the ring was allegedly recovered in the presence of the complainant allegedly from the house of accused Sonu @ Mulla @ Aslam. But the surrounding circumstances, discussed hereinabove make the alleged recovery of alleged robbed ring from the house of accused Sonu, by not following the settled procedures, make the recovery highly doubtful. FIR No: 473/13 State v. yogdutt & Ors. Page No.18/19
27. In view of the above, it is held that prosecution has failed to prove its case against the accused beyond reasonable doubts. Resultantly, the accused are acquitted of the charged offences.
Dictated & Announced in Open Court (Kishor Kumar) th On the 16 day of May, 2017 MM-03/South-West/Delhi 16.05.2017 FIR No: 473/13 State v. yogdutt & Ors. Page No.19/19