Delhi District Court
State vs Kailash S/O Shri Mohan Singh on 6 February, 2012
IN THE COURT OF SH. AJAY KUMAR JAIN, LD. ADDL.SESSIONS
JUDGE03, SE: NEW DELHI
Sessions Case No. 183/10
State Vs Kailash S/o Shri Mohan Singh
R/o H.No. 211, Gali no. 6,
Om Nagar, Meethapur,
New Delhi
FIR No : 60/08
P.S. : Jaitpur
U/s. : 392/397/34 IPC & 25/54/59 Arms Act
DATE OF INSTITUTION : 10.12.2010 (Initial date of
Institution: 30.03.2009)
JUDGMENT RESERVED ON : 04.02.2012
DATE OF DECISION : 06.02.2012
JUDGMENT:
1. Prosecution case in brief is that on receiving DD no. 33A on 23.12.2008, SI Dara Singh alongwith Ct. Ghanshyam reached the spot i.e, near Agra Nehar road near Shivpuri, Meethapur, New Delhi where Ct. Mohd. Aslam State Vs. Kailash etc. SC No. 183/10, (pg-1) has handed over him accused Kailash and Noorul Haq alongwith recovered buttondar knife and one mobile phone. SI Dara Singh further recorded the statement of complainant Pramod Kumar Gupta.
2. Complainant Pramod Kumar Gupta in his statement alleged that he works as a driver and today i.e, 22.12.2008 after completing his duty going back to his house at around 11 pm, two boys on foot came in front of him and stopped him. One of the boys put knife on his chest and the second boy had taken out the mobile from his right pant pocket and ran away from that place after pushing him. He further alleged that on his shouting two police persons on motorcycle and one other passerby came and they all apprehended those persons the boy who put the knife on his chest revealed his name as Kailash and other boy who took out the mobile revealed his name as Noor Ul Haq. Pursuant to recording of his statement, rukka was prepared and the knife and mobile phone were seized, consequently FIR was registered.
3. During investigation site plan of the spot was prepared. Accused disclosure statement and arrest memo were prepared and statement of witnesses were recorded. On completion of investigation, chargesheet was filed.
4. On committal, charge u/s 392/34 IPC was framed against accused Kailash State Vs. Kailash etc. SC No. 183/10, (pg-2) and Noor Ul Haq and further charge u/s 392/397 IPC was framed against accused Kailash. Accused Kailash was further charged under 25 of Arms Act. During the pendency of trial , accused Noor Ul Haq was declared juvenile by this court vide order dated 26.09.2011 and was sent to juvenile Justice Board for trial.
5. Prosecution for substantiating charge has examined 7 prosecution witnesses. The summary details of their deposition is as under.
6. PW1 Pramod Kumar Gupta deposed that on 22.12.2008 he after finishing his duty going back to his house and got down from TSR at Meethapur chowk and thereafter walked down to his house and at around 11 pm when he reached Shivpuri, then both accused caught him by neck and accused Kailash took out knife and placed it on his chest and also took out the mobile phone from right pocket of his wearing pant. Thereafter, they beat him and accused Kailash threatened him by showing knife that to give them whatever he have, otherwise he will hit him with the knife. After pushing him, they ran from the spot. On his shouting two police persons and one passerby caught the accused who were running and they were taken to PP where they disclosed their names as Kailash and Noorulhaq and knife was recovered from Kailash and mobile was also recovered and police further prepared sketch of the knife. This witness also deposed that since the day he received the summons, mother of State Vs. Kailash etc. SC No. 183/10, (pg-3) accused Nurulhaq came to their house and asked to forgive their son. And the court noticed this witness perturbed and fearful. In cross examination, he deposed that he do not know the accused before the incident and the road where incident took place is busy road at the time of incident. And the mobile phone which was given by his employer but his employer was not investigated by the police and his statement was recorded by the police in PS. And both accused were caught at the spot and all writing work was conducted in PS. And denied the suggestion that accused persons had not pointed out any knife and further not snatched any mobile phone. He further deposed that there is no specific mark on knife and mobile phone.
7. PW2 HC Birbal recorded FIR at around 1.30 am on 23.12.2008.
8. PW3 Ct. Girish deposed that on 22.12.2008 he alongwith Ct. Aslam were on patrolling duty on motorcycle and at around 11 pm he heard the noise of one person that his mobile phone was snatched and on hearing cry he also reached there and that person was chasing two boys and one public person was also chasing those two boys. They alongwith complainant had apprehended those boys whose name revealed as Kailash and Nurulhaq. He further deposed that complainant told them that accused Kailash put knife on his chest and other accused snatched his mobile. He further deposed that in the meantime SI Dara Singh alongwith Ct. Ghanshyam reached at the spot and from search of accused Kailash State Vs. Kailash etc. SC No. 183/10, (pg-4) one knife was recovered and one mobile phone was recovered from possession of accused Nurulhaq. In cross examination he deposed that he heard the noise of complainant from 7080 mtrs. And further stated that he apprehended accused Kailash and Nurulhaq was apprehended by Ct. Aslam and complainant and other public persons also reached there within 20 seconds but he cannot tell the name of other public persons. He further deposed that SI Dara Singh alongwith Ghanshyam reached at the spot and prepared sketch and seizure memo at the spot. And mobile phone was recovered from right side pocket of accused Nurulhaq. Ct. Mohd. Aslam recovered the knife from right side pant pocket of accused Kailash.
9. PW4 Anil Yadav Home Department exhibited the original notification of Home Department declaring buttondar knife as prohibited weapon.
10. PW5 Ct. Ghanshyam deposed that on receiving DD no.33A he alongwith SI Dara Singh reached the spot and found Ct. Aslam apprehending accused Kailash and Ct. Girish apprehending other persons Nurulhaq and knife was recovered from possession of Kailash and mobile phone from Nurulhaq. Further, IO seized the knife and prepared the seizure memos of knife and prepared site plan at the instance of Pramod Gupta and thereafter they came back to PS and accused was sent to hospital.
State Vs. Kailash etc. SC No. 183/10, (pg-5)
11. PW6 Ct. Aslam deposed that on 22.12.08 he was on patrolling duty alongwith Ct. Girish Kumar and found one person shouting chorchor and another public person chasing those two persons. Thereafter, both boys were apprehended by them after 7080 mtrs. And on conducting of search one buttondar knife was recovered from right pocket of accused Kailash and from Nurulhaq one mobile phone was recovered, thereafter on information SI Dara Singh came to spot and he seized the knife and mobile phone and further prepared site plan and arrested the accused persons. Thereafter the accused were brought to the PS. In cross examination, he deposed that IO had not asked from where they acquired the knife and further denied that knife was planted. He further deposed that knife was seized into pulanda and sealed but mobile phone was not sealed and distance between place of occurrence and spot is 6 kms and they took accused to PS by TSR but do not know the name of the TSR driver and he paid fare of Rs.45/ to TSR driver.
12. PW7 SI Dara Singh deposed that on receiving DD no.33A he reached the spot and accused persons were produced by Mohd. Aslam and Ct. Girish alongwith one buttondar knife and mobile phone alleged to be from accused and seized both mobile phone and the knife and further recorded the statement of the complainant Pramod Kumar Gupta and prepared rukka and sent Ct. Ghanshyam for registration of FIR. Further during State Vs. Kailash etc. SC No. 183/10, (pg-6) investigation at instance of complainant prepared site plan and accused were arrested and their disclosure statements were recorded. In cross examination deposed that he reached the spot at around 11/11.30 pm and accused persons were found apprehended alongwith articles when he reached the spot and remained there till 2.30 to 3 am and had prepared all documents by sitting under electric pole but no electric pole was shown in site plan. He further deposed that he made inquiries of source of knife from accused but they did not disclosed and there were designs engraved on handle of the knife. And further stated that there is a distance of around 67 kms between PS and spot and they brought the accused to PS in Gypsy and they all except Ct. Aslam came to PS in Gypsy.
13. Accused in his statement u/s 313 Cr.P.C denied all the incriminating circumstances and stated that he was falsely implicated in the present case.
Material Exhibits:
14. Ex.PW1/A is the statement of complainant Pramod Kumar Gupta recorded by the police pursuant to which rukka Ex.PW7/B was prepared and FIR Ex.PW2/A was registered. Ex.PW7/C is the site plan of the spot. Ex.PW1/C is the sketch of buttondar knife alleged to be recovered State Vs. Kailash etc. SC No. 183/10, (pg-7) from accused Kailash. Ex.PW1/A is DD no.33A recorded at PS Jaitpur at around 11.30 pm dated 22.12.08 regarding the present incident. Ex.PW1/D is the seizure memo of mobile phone alleged to be recovered from accused Noor Ul Haq (juvenile). Ex.PW1/B is the seizure memo of the knife recovered from accused Kailash. Ex.PW4/A is the notification dated 17.02.79. Ex.PW1/B is disclosure statement of accused Kailash. Ex.PW1/F arrest memo of accused Kailash. Ex.PW1/H personal search memo of accused Kailash.
15. Ld. Amicus curie for the accused submitted that the accused is falsely implicated in the present case and the police investigation on the face of it is unreliable. PW1 in his testimony had submitted that the entire police proceedings were conducted at PS whereas other police officials deposed that entire proceedings were conducted at spot. Ld. Amicus curie for accused further submitted that PW1 even could not state any particular mark on knife. Further he had not suffered any injury which shows that there is no knife used in said incident. Ld. Counsel further submits that recovery of mobile also appears to be false and fictitious. Ld. Amicus curie for the accused submitted the prosecution unable to prove its case against the accused.
16. Ld.Addl. PP on the other hand submitted that testimony of PW1 appears State Vs. Kailash etc. SC No. 183/10, (pg-8) to be wholly reliable over the description of incident . Further both accused were apprehended at the spot and there is no reason why PW1 will deposed against the accused persons. Ld. Addl. PP further submitted PW1 has duly identified accused in court and further incriminating recoveries are also made from accused at the spot itself. Ld. Addl. PP submits that prosecution able to prove its case beyond reasonable doubt against the accused.
17. Arguments heard. Record perused.
18. As per ExPW1/A i.e, the statement of the complainant Pramod Kumar Gupta (PW1) recorded by the police in which he alleged that when he was going to his house at around 11 pm and when he reached near Shivpuri Meethapur chowk, two boys on foot came and one has kept knife on his chest and other took out mobile from his pant and thereafter, pushed him on the ground and ran away and on his shouting two police persons and one other passerby had caught hold of these two boys and a knife was recovered from accused Kailash and mobile from accused Noor Ul Haq. In his testimony before this court, PW1 deposed that both the accused came from front and they caught him from neck and accused Kailash pointed knife to his chest and also took out mobile make motorola from his pant. And further accused Kailash asked him by showing knife that whatever he has give it to them. And after pushing him down when they State Vs. Kailash etc. SC No. 183/10, (pg-9) ran, two police persons came from front side and one passerby caught him and he was taken to PP.
19. In this testimony this witness has stated that only the accused Kailash had shown him the knife and also took out his mobile phone make motorola. But as per his statement Ex.PW1/A and as per testimony of other prosecution witness, the motorola phone was takenout from his pant by accused Noor ul haq. This witness further deposed that thereafter on apprehension they were taken to police post and all the writing work etc. conducted at PS. PW3 Ct. Girish also deposed that as he was patrolling in the area alongwith Ct. Aslam, they apprehended the accused persons alongwith the complainant and the complainant told him that accused Kailash put the knife on his chest and other accused snatched his mobile. And further stated that all writing work and sketch memos were made at the spot. PW6 Ct. Aslam also deposed on the same lines and also stated that all the proceedings of recovery and seizure memos were prepared at the spot. Thus there is inconsistency in statement of these witnesses i.e, PW1, 3 & 6 on the aspect who has taken out mobile from body of the PW1. It is only the mobile which is robbed property in this case. There is another independent passerby Sanjay joined by police who apprehended the accused persons is not examined before court as he was not found to be traceable.
State Vs. Kailash etc. SC No. 183/10, (pg-10)
20. PW1 deposed that the entire writing proceedings were conducted at the PS. PW1 also not disclosed in his examination in chief that the knife which was recovered is a buttondar knife or a normal knife though the seizure memo of knife is exhibited through him. PW1 in cross examination could not state any feature /mark on the recovered knife whereas as per sketch memo the knife is shown to be buttondar knife having various designs on it. PW7 specifically stated that there are designs engraved on the handle of the knife. Ex.PW1 seizure of knife shows that knife was handed over to PW7 Dara Singh by Mohd. Aslam (PW6) where as PW3 Ct. Girish deposed that when SI Dara Singh alongwith Ct. Ghanshyam reached at the spot on search of Kailash one knife was recovered and from accused Noor ul haq one mobile was recovered. Thus there is inconsistency over the fact whether knife was recovered by PW6 Ct. Aslam or by PW7 Dara Singh.
21. PW3, PW6, PW7 stated that the entire recovery and proceedings took placed at the spot whereas PW1 stated that the entire proceedings were conducted at PS. Ct. Aslam (PW6) deposed that accused were taken to PS by TSR whereas PW7 stated that accused persons were taken to PS in police gypsy.
22. As PW1 could not state the particulars of the knife and recovery of knife and entire proceedings according to him were not conducted at spot and State Vs. Kailash etc. SC No. 183/10, (pg-11) accused was taken to PS just after apprehension whereas the other prosecution witnesses stated that entire proceedings of knife was conducting at spot. It creates doubt on prosecution story whether any buttondar knife was used in such offence and even if it is assumed any other kind of knife used in such incident then also it can't be inferred that the knife alleged to be used could be categorised as a deadly weapon or not. The offence u/s 397 IPC warrants minimum sentence of sever years and any doubt over the identity and recovery of weapon is fatal for prosecution for seeking conviction u/s 397 IPC. Thus, accused Kailash who alleged to have used can't be found guilty for commission of offence u/s 397 IPC.
23. Accused persons were apprehended at the spot and there is no enmity of PW1 shown with accused persons, the testimony of PW1 is reliable to the extent that the accused persons have robbed mobile from him. Thus, accused Kailash is found guilty for commission of offence u/s 392/34 IPC. As the recovery of buttondar knife from accused is found doubtful thus no offence u/s 25/54/59 made out against accused Kailash.
24. In view of above discussion, prosecution able to prove its case to the extent that accused Kailash robbed PW1 from his mobile phone alongwith his associate Noor ul Haq and thus found guilty for commission of offence u/s 392/34 IPC. but prosecution unable to prove the charge u/s 397 IPC State Vs. Kailash etc. SC No. 183/10, (pg-12) and 25/54/59 Arms Act beyond any reasonable doubt. Hence accused is acquitted of charge u/s 397 IPC and 25/54/59 Arms Act. Accused be heard on point of sentence .
Announced in Open Court
On 6th February, 2012 (Ajay Kumar Jain)
ASJ03: SE: NEW DELHI
State Vs. Kailash etc. SC No. 183/10, (pg-13)