Delhi District Court
State vs . Gopal & Ors. on 10 May, 2022
1/17 IN THE COURT OF SHRI DEEPAK KUMARI ACMM: NORTHWEST: ROHINI COURTS:NEW DELHI FIR No. 06/ 2009 PS: Bharat Nagar U/s. 392/394/411/34 IPC State Vs. Gopal & Ors. Date of Institution of case : 10.12.2009 Date of Judgment reserved : 29.04.2022 Date on which judgment pronounced : 10.05.2022 JUDGMENT
1) Unique ID no. of the case : 538346/2016
2) Date of commission of offence : 29.09.2009
3) Name of complainant : Sh. Ganesh Dutt.
S/o Sh. Sunder Lal Prajapati, R/o EE2794, Jahangirpuri, Delhi
4) Name and address of accused: (1) Gopal S/o Sh. Ram Phal R/o K296, JJ Colony, Wazirpur, Delhi.
(Proceedings abated vide order dated 30.01.2020) FIR No. 06/09 PS Bharat Nagar State Vs. Gopal & Ors.
Digitally signed by DEEPAKDEEPAK KUMAR Date: KUMAR 2022.05.10 17:44:54 +0530 2/17 (2) Sunny S/o Sh. Pappu Singh, R/o Jhuggi No. 9, Patharwala Bagh, JJ Colony, Wazirpur, Delhi 5) Offence complained of : U/s 392/394/411/34 IPC 6) Plea of accused : Pleaded not guilty 7) Final Order : Acquitted 8) Date of order : 10.05.2022. BRIEF REASONS FOR DECISION Brief facts
1. Case of the prosecution in brief is that on 29.09.2009 at about 2.50 pm at Teachers Park, Nimri Colony, Delhi, accused Sunny alongwith coaccused Gopal (who was apprehended at the spot), in furtherance of their common intention, committed robbery of one purse and one mobile from the complainant Ganesh Dutt and also gave him beatings by fist and kicks while committing robbery and thereby committed an offence u/s 392/394/34 IPC.
2. Or in alternative, on 12.01.2011, at unknown time at house No. E208, JJ Colony, Wazirpur, Sunny was found in FIR No. 06/09 PS Bharat Nagar State Vs. Gopal & Ors.
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possession of one purse belonging to complainant Ganesh Dutt which he received or retaining knowingly or having reasons to believe the same to be stolen property and thereby committed an offence u/s 411 IPC.
Trial
3. After completion of investigation, charge sheet against both the accused persons for offences U/s. 392/394/411/34 IPC was filed in the court and after complying with the provisions of Sec. 207 Cr. P.C., arguments on charge were heard. Vide order dated 17.02.2011, charge were framed U/s. 392/394/34/411 IPC against accused Sunny to which he pleaded not guilty and claimed trial. During the course of trial, accused Gopal expired and accordingly proceedings against him was disposed off as abated vide order dated 30.01.2020.
4. In support of its case, the prosecution examined nine witnesses. Thereafter, statement of accused Sunny recorded under Section 313 Cr.P.C.
Appreciation of evidence in the light of settled legal propositions.
5. I have heard the arguments of Ld. APP for State FIR No. 06/09 PS Bharat Nagar State Vs. Gopal & Ors.
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and Ld. Counsel for the accused Sunny and also perused the record carefully.
6. PW1 HC Sanjay Kumar stated that on 29.09.2009, he was posted at PS Bharat Nagar and working as DO from 4.00 pm to 12.00 am. At about 4.50 pm, he received one rukka through SI Ramesh Chand by Ct Dharmender for registration of the case. Accordingly, he registered the case FIR No. 06/09 which is in his own handwriting and also made endorsement on the original rukka. He had brought the original FIR, carbon copy of same is Ex. PW1/A and endorsement is Ex. PW1/B which bears his signature at point A (OSR)
7. PW2 HC Vijay Laxmi stated that on 29.09.2009, he was posted at PS Bharat Nagar. At 03.03 pm, he received PCR call regarding snatching of purse and mobile phone near MCD school Nimri Colony. This information was recorded vide DD No. 19 in the DD register. He had brought the DD register containing the said DD No. 19. He prepared a copy of DD No. 19 and same was handed over to SI Ramesh Chand. The copy of DD is Ex. PW2/A.
8. PW3 Ct Subhash Chand stated that on FIR No. 06/09 PS Bharat Nagar State Vs. Gopal & Ors.
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KUMAR Date:
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29.09.2009, he was posted as Constable at PS Bharat Nagar. On that day, he was on patrolling duty in the afternoon. At about 3.00 pm, he was present near Teachers Park Nimri colony. He saw that one person was chasing two boys. He was also raising alarm as those persons had snatched his mobile and purse. He was coming from the opposite side and apprehended one out of those boys. That boy disclosed his name as Gopal. He correctly identified accused Gopal present in the Court. The other culprit successfully fled away from the spot. The person who was chasing the culprits informed his name as Ganesh Dutt. Complainant Ganesh Dutt conducted the search of the clothes of accused Gopal. The mobile phone make TATA Indicom black colour of complainant was recovered from possession of accused Gopal. Complainant also made call to police after sometime SI Ramesh Chand reached at the spot. Accused was produced before the IO and recovered mobile phone was also produced. IO sealed the mobile phone with the seal of RC and same was taken into police possession. IO recorded the statement of complainant Ganesh Dutt and prepared rukka. He handed over the rukka to Ct Dharmender who had come to the spot alongwith IO. Ct Dharmender was sent to PS by IO for registration of FIR. On the direction of IO, he took complainant Ganesh Dutt to BJRM Hospital for getting him medically FIR No. 06/09 PS Bharat Nagar State Vs. Gopal & Ors.
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KUMAR Date:
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examined as he had sustained injuries during the commission of offence. He again came back at the spot alongwith complainant. He handed over to the IO SI Ramesh Chand MLC of injured Ganesh Dutt. Ct Dharmender came back at the spot after registration of FIR. The said recovered mobile phone was taken into police possession vide seizure memo EX. PW5/E which bears his signature at point B. Seal of RC after use was handed over to him. Accused was arrested and personally searched and memo was prepared in this regard. Disclosure statement of accused was also recorded which is already Ex. PW3/A which bears his signature at point A. On the said mobile phone, HUAWEI was written and SIM of TATA Indicom was also present in it. He could identify the recovered mobile phone if shown to him. Recovered mobile phone was exhibited as P1 in the testimony of PW5 and genuineness of carbon copy of seizure memo was not disputed by Ld defence counsel.
9. PW4 Ct Dharmender stated that on 29.09.2009, he was posted as Constable at PSBharat Nagar. On that day, on receipt of call regarding snatching of mobile phone and purse near Teachers Park, Nimri Colony, he alongwith SI Ramesh Chand went to the spot where Ct Subhash alongwith complainant Ganesh Dutt met. They produced accused Gopal FIR No. 06/09 PS Bharat Nagar State Vs. Gopal & Ors.
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and one mobile phone which was robbed by accused alongwith his associate and recovered from his possession. The mobile phone was sealed by IO with the seal of RC and taken into police possession. IO recorded the statement of complainant Ganesh and prepared rukka. On the instruction of IO, he took the rukka to PS and got registered the FIR. IO sent complainant with Ct Subhash to hospital for getting him medically examined. After sometime, Ct Subhash alongwith complainant came at the spot. Accused Gopal was arrested in the present case. They made search of the other associate of accused Gopal but he could not be traced out. Thereafter, he came back to PS. Case property i.e mobile phone was deposited with MHC(M) by IO. He correctly identified accused Gopal before the Court.
10. PW5 complainant Ganesh Dutt stated that during those days, he used to work with B.K. International, Village Badli. He was turned out from the company in the month of October 2009. He does not remember the exact date of incident. However, it took place in the month of September/ October/ November 2009. On that day, he went to Labor Court, Nimri Colony for attending the date of his case. He was coming back after attending the date of his case and was returning to his house in the afternoon. At about 2.002.30 pm, he reached bus FIR No. 06/09 PS Bharat Nagar State Vs. Gopal & Ors.
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stand of bus route No. 142 Ashok Vihar. He was waiting for the bus for a long time but bus did not come. So he went near park and started waiting for the bus. In the meantime, two persons came. He identified accused Gopal. Accused Sunny present before the court was shown to the accused Gopal. After seeing the accused Sunny, witness stated that he was not the person who had come alongwith Gopal. Thereafter, accused Gopal and his associates took out his mobile phone make Tata Indicom and his purse (containing cash around Rs.3200/ and some visiting cards, Metro card and some coins) from him. Accused Gopal was apprehended at the spot by the police officials. His mobile phone was recovered from the possession of accused Gopal. His mobile phone was seized by the police. His statement was recorded at the spot. Same was Ex.PW5/A. Accused Gopal was arrested vide arrest memo Ex.PW5/B and personal search memo Ex.PW5/C. After some days, when he came to the court, he saw the other culprit in the custody of police officials. He identified him being the associate of accused Gopal. He informed the police about him then he was told that the other culprit was also arrested by the police. He was informed the name of other culprit as Sunny. He did not see that Sunny thereafter. Accused Sunny present before the court today was not the person who had committed robbery with accused Gopal so he did not FIR No. 06/09 PS Bharat Nagar State Vs. Gopal & Ors.
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identify accused Sunny present before the court. Seizure memo is Ex.PW5/E. He could identify his robbed purse if shown to him. His purse was containing some visiting cards, some cash and coins at the time of robbery. The colour of his purse was brown. MHCM produced one purse already Ex.P2. After seeing the same, witness identified his purse.
11. PW6 Constable Dharmender stated that on 20.09.2009 Constable Subhash and one Ganesh met them and they produced accused Gopal before them. He identified accused Gopal present before the court. He further informed that accused Gopal was apprehended with his mobile phone. On the instruction of IO, he took the rukka to PS Bharat Nagar and got registered the FIR. He again came back at the spot with the copy of FIR and original rukka.
12. PW7 Constable Deepak deposed that on 12.01.2011 he was posted as constable at PS Bharat Nagar. On that day he joined the investigation with SI Ramesh Chand and Ct. A.T. Niwas. SI Ramesh Chand at PP J.J. Colony informed him about the secret information which he had received. He informed that accused Sunny had come in House No. E208, Wazir Pur, J.J. Colony and if raided he could be apprehended.
FIR No. 06/09 PS Bharat Nagar State Vs. Gopal & Ors.
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Then he alongwith IO Ct. Shri Niwas and secret informer went to the aforesaid house and saw one person coming out from House No. E208, Secret Informer pointed out towards that person and then he was apprehended by them. He identified accused Sunny. PW7 correctly identified the accused Sunny in the Court. He further disclosed that he kept the robbed purse with him. That purse was got recovered by IO from the pocket of his wearing jeans pant. He disclosed that he had spent the money which was kept by complainant in the purse, however he had retained the purse with him. The purse was of brown colour and it was containing cash amount of Rs. 60/ and the same was wrapped with cloth and sealed by the IO with the seal of RC and seal after use was handed over by him to Ct. A.T. Shri Niwas. The purse was taken into possession. Accused was arrested and after medical examination, he was produced before the Court.
13. PW8 Constable A.T. Sri Niwas deposed that on 12.01.2011 he was posted as constable at PS Bharat Nagar and on that day, he joined the investigation of this case with IO SI Ramesh Chand. He alongwith Ct. Deepak went to Wazir Pur for searching the accused Sunny. When they reached near police post J.J. Colony then one secret informer came and informed IO that the offender wanted in the present case was residing in FIR No. 06/09 PS Bharat Nagar State Vs. Gopal & Ors.
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signed by
DEEPAK
DEEPAK KUMAR
KUMAR Date:
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House No.F208, Wazirpur JJ Colony. Then they alongwith informer reached near House No.F208. He identified the accused Sunny in the Court. He was arrested in the present case vide arrest memo Ex.PW8/A and IO conducted his personal search. One purse was recovered from the right back pocket of his wearing jeans pant. There was cash of Rs.60/ in the purse. Accused Sunny disclosed that this cash amount was the part of robbed amount. He had kept the aforesaid purse being of good quality and same was kept by him with his associate. IO prepared a cloth parcel of said purse and affixed his seal of RC on the same. That cloth parcel was taken into police possession vide seizure memo Ex.PW8/B. IO also prepared personal search memo Ex.PW8/C. He proved the purse i.e. Ex.P2. Accused Sunny was produced in muffled face before the court after his medical examination. Again said cash of Rs. 60/ was seized through separate memo i.e. personal search memo.
14. PW9 SI Ramesh Chand deposed that on 29.09.2009 he was posted at PS Bharat Nagar as SI. On that day, on receipt of DD No.18A which is Ex.PW9/A, he alongwith Ct. Dharmender reached at the spot i.e. at near Teachers Park, Nimri Colony. At the spot, one public person namely Ganesh Dutt and Ct. Subhash met him. They were found FIR No. 06/09 PS Bharat Nagar State Vs. Gopal & Ors.
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apprehending the accused and said Ganesh Dutt handed over to him his Tata Indicom mobile phone and also gave his statement to him. He kept the said recovered mobile phone in a piece of cloth and sealed it with the seal of RC and same was taken into possession vide memo Ex.PW5/E and seal after use was handed over to Ct. Subhash Chand. He recorded the statement of complainant Ganesh Dutt and prepared the rukka Ex.PW9/B and same was handed over to Ct. Dharmender for registration of FIR. He prepared the site plan of the spot at the instance of complainant Ganesh Dutt which is Ex.PW9/C. He sent complainant Ganesh Dutt to BJRM hospital alongwith Ct. Subhash for his medical examination. Ct. Subhash came back to the spot alongwith complainant Ganesh Dutt after his medical examination and handed over him his MLC. He searched for another person who had fled away from the spot alongwith accused Gopal but he could not be traced. He came back to the spot and inquired from the accused and recorded his disclosure statement Ex.PW3/A. He arrested accused Gopal vide arrest memo Ex.PW5/B and proved his personal search Ex.PW5/C. He got conducted the medical examination of accused Gopal and came back to PS and deposited the case property in malkhana. He recorded the supplementary statement of witnesses. He searched for coaccused but he was not arrested. He took his FIR No. 06/09 PS Bharat Nagar State Vs. Gopal & Ors.
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NBWs and when coaccused was not arrested, he filed challan in the present case. On 12.01.2011 he alongwith Constable A.T. Srinivas and Constable Deepak were on patrolling duty and received secret information regarding presesnce of coaccused of the present case at the house E208, J.J. Colony, Wazir Pur, Delhi and he alongwith secret informer and above stated constables visited the said place. On the instance of secret informer, he arrested coaccused Sunny vide arrest memo Ex.PW8/A and personally search vide memo Ex.PW8/C. He recorded disclosure statement of accused Sunny vide memo Ex.PW9/C. On the search of accused Sunny, one purse brown color was recovered from his right side pocket of his jeans pant. In the said purse Rs.60/ was present and accused Sunny stated that the said purse belongs to complainant Ganesh Dutt and said purse was the robbed one. The said purse was kept in a piece of cloth and sealed with the seal of RC and sealed purse was taken into police possession vide memo Ex.PW8/B. Accused was medically examined in muffled face and case property was deposited in malkhana and accused was Sunny produced before the Court and he moved and application for TIP of recovered purse. On the date fixed for the TIP of the accused, accused refused for his TIP and on the date fixed for the TIP of the recovered purs,e complainant Ganesh Dutt correctly identified FIR No. 06/09 PS Bharat Nagar State Vs. Gopal & Ors.
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his purse. He collected both the said TIP proceedings and the same are Ex.PW9/D and PW9/E. On 25.01.2011, when accused was produced before the court in JC, complainant also came in the court and identified coaccused Sunny as the person involved in the present case. He recorded statement of complainant Ganesh Dutt and witnesses in this regard and filed supplementary challan against the accused Sunny and original challan against the accused Gopal.
15. Thereafter, prosecution evidence was closed and statement of accused Sunny U/s 313 Cr.P.C. was recorded in which accused has denied all the allegations leveled against him. Accused Sunny wished to lead defence evidence. Thereafter, several opportunities were given to accused to lead defence evidence but he failed to lead defence evidence and accordingly defence evidence was closed vide order dated 11.03.2022 and matter was fixed for final arguments.
16. I have heard argument addressed by Ld. APP for the State and Ld. Counsel for the accused and have perused the record carefully.
17. In the present matter, accused Sunny is facing trial FIR No. 06/09 PS Bharat Nagar State Vs. Gopal & Ors.
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KUMAR Date:
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U/s. 392/394/34/411 IPC. As such, the testimony of
complainant/PW Ganesh Dutt was a material one. However, abovesaid PW failed to identify the accused and support the prosecution case in its material particulars. He was the only witness who could have thrown some light on the incident. All other witnesses were formal in nature and their evidence was of no avail to the prosecution. In view of the above, the offence U/s 392/394/34 IPC does not stand the scrutiny of the court. Accordingly, the accused Sunny stands acquitted for the offence U/s 392/394/34 IPC.
18. So far as, the offence U/s 411 IPC is concerned, accused Sunny is alleged to have been found in possession of one purse belonging to the complainant Sh. Ganesh Dutt which he is alleged to have received or retained knowingly or having reasons to believe the same to be a stolen property. It has already come on record that the complainant/victim Sh. Ganesh Dutt has failed to identify the accused. During his cross examination, he admitted that there is no specific identification mark on the purse which was alleged to have been recovered from the possession of accused Sunny. The purse in question is alleged to have been recovered from the possession of accused Sunny by the police officials at the time of his apprehension on 12.01.2011. Admittedly, there is no public witness of recovery FIR No. 06/09 PS Bharat Nagar State Vs. Gopal & Ors.
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proceedings. No justification has been offered as to why no public witness was made to join the recovery proceedings. Moreover, the date of alleged incident of robbery is 29.09.2009 and the date of recovery of the purse in question is 12.01.2011. Apparently, there is gap of around one and a half years from the date of incident and alleged recovery of purse. It appears implausible that accused will be found roaming with the same purse after the lapse of around one and half years from the date of incident. In view of the attending circumstances and considering the testimonies of the witnesses, the recovery appears to be doubtful.
19. It appears also relevant to acknowledge and appreciate the fact that criminal conviction entails enigmatic and stigmatic experiences and exposures for the accused and thus it becomes of paramount importance to demand evidence of unimpeachable character and of unambiguous nature. From the above discussion and findings, in my considered view accused Sunny deserves to be given benefit of doubt.
20. In view of the forgoing discussions, it is held that prosecution has failed to prove its case against the accused Sunny beyond reasonable doubt. Accordingly, he is acquitted for the all the offences charged against him.
FIR No. 06/09 PS Bharat Nagar State Vs. Gopal & Ors.
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KUMAR Date:
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21. Bail bond in terms of Section 437 A Cr.P.C has been obtained from the accused Sunny in compliance of the judgment of the Hon'ble High Court in State Vs. Virender Yadav & Anr. 2014 I.A.D (Del.) 389.
Digitally signed by DEEPAK Announced in open Court on DEEPAK KUMAR KUMAR Date: Today, on this 10.05.2022 2022.05.10 17:45:17 +0530 (DEEPAK KUMARI) ACMM (NORTHWEST) ROHINI COURT, DELHI FIR No. 06/09 PS Bharat Nagar State Vs. Gopal & Ors.