Delhi District Court
State vs . Vijay Kumar & Anr. on 13 August, 2018
IN THE COURT OF MS ANJANI MAHAJAN METROPOLITAN
MAGISTRATE02 (SOUTH DISTRICT), SAKET COURTS COMPLEX,
NEW DELHI
STATE Vs. VIJAY KUMAR & ANR.
FIR No. 460/15
U/s : 394/411/34 PC
P.S. : Malviya Nagar
Date of Institution : 07.05.2015
Date on which case reserved for Judgment : 02.08.2018
Date of judgment : 13.08.2018
JUDGMENT
1.FIR No. of the case : 460/15
2.Date of the Commission : 10.03.2015
of the offence
3.Name of the accused : 1.Vijay Kumar,
: S/o Late Amardev,
: R/o Village Sura Pur,
: PO Office Tawakal Pur,
: District Sultan Pur,
: UP.
: 2. Kanheya,
: S/o Sh. Prahlad,
: R/o H. No. S 83/440,
: Begum Pur,
: Malviya Nagar,
: New Delhi.
4.Name of the complainant : Sh. Vishnu Bahadur,
: S/o Sh. Ram Bahadur,
: R/o H. No. 102,
: Max wali Gali,
: Hauz Rani,
: New Delhi.
5.Offence complained of : U/s 394/411/34 IPC
FIR No. 460/15 State Vs. Vijay Kumar & Anr. 1/8
6.Plea of accused : Pleaded not guilty
7.Final order : Accused persons Vijay Kumar and
: Kanheya acquitted for the offences
: alleged.
BRIEF FACTS:
1. Briefly stated the case of the prosecution is that on 10.03.2015 at about 09:15 pm in front of Shiv Mandir, Bada Gol Chakkar, Malviya Nagar, New Delhi within the jurisdiction of PS Malviya Nagar, accused Vijay Kumar alongwith coaccused Kanheya voluntarily caused hurt to the complainant Vishnu Bahadur and snatched Rs. 2000/ (as per the complaint) from the complainant and Rs. 1000/ was recovered from the possession of accused Vijay Kumar and thereby the accused Vijay Kumar committed the offences punishable under sections 394/411/34 IPC and accused Kanheya committed the offence punishable U/s 394/34 IPC.
2. FIR No. 460/15 was registered at police station Malviya Nagar on the basis of aforesaid allegations.
3. After completion of investigation charge sheet under sections 394/411/34 IPC qua accused Vijay Kumar was filed before the court on 07.05.2015. Thereafter a supplementary chargesheet U/s 394/411/34 IPC qua the accused Kanheya was filed on 22.12.2016.
4. On the basis of prima facie material available on the record charge for the offences punishable under section 394/411 IPC was framed against the accused Vijay Kumar to which the accused pleaded not guilty and claimed trial on 14.07.2018 and charge for the offence U/s 394/34 IPC was framed against the FIR No. 460/15 State Vs. Vijay Kumar & Anr. 2/8 accused Kanheya to which the accused pleaded not guilty and claimed trial on 03.03.2017.
THE TRIAL PROCEEDINGS:
5. In order to establish its case, the prosecution has examined five witnesses.
a) PW1 was the complainant Sh. Vishnu Bahadur. He exhibited his statement/complainant as Ex. PW1/A, site plan as Ex. PW1/B, arrest memo of accused Vijay Kumar as Ex. PW1/C, seizure memo of cash of Rs. 1000/ as Ex.
PW1/D, disclosure statement of accused Vijay Kumar as Ex. PW1/E, arrest memo of accused Kanheya as Ex. PW1/F and disclosure statement of accused Kanheya as Ex. PW1/G.
b) PW2 was the Investigating Officer (IO) of the case ASI Ram Lal. He exhibited the rukka as Ex. PW2/A and two currency notes of denomination Rs. 500/ each as Ex. N1 and Ex. N2.
c) PW3 was the employer of complainant Sh. Mohd Khalil who deposed about the incident.
d) PW4 was Ct. Dhara Singh who accompanied the IO to the spot on 10.03.2015.
e) PW5 was HC Surender Kumar who accompanied the IO to the spot on 01.10.2016.
6. Accused persons Vijay Kumar and Kanheya admitted the factum of registration of FIR No. 460/15, PS Malviya Nagar and DD No.83B dated 10.03.2015 U/s 294 Cr.P.C. and the same were exhibited as Ex. X1 and Ex. X2 respectively on 30.03.2017.
7. Prosecution evidence was closed on 07.07.2018. After conclusion FIR No. 460/15 State Vs. Vijay Kumar & Anr. 3/8 of prosecution evidence, the statement of accused persons Vijay Kumar and Kanheya (SA) under section 313 r/w section 281 Cr.P.C was recorded on 27.07.2018 wherein the accused persons denied the allegations and did not seek to lead defence evidence.
FINAL ARGUMENTS:
8. Thereafter final arguments were advanced by Ld. APP for the State and Ld. counsel for the accused persons. I have heard the arguments and perused the record.
REASONS FOR DECISION:
9. The sole eye witness of the alleged incident cited by the prosecution is the complainant/PW1 Sh. Vishnu Bahadur. In order for the testimony of the complainant/PW1 to form the basis of conviction, it must be cogent, convincing and corroborative of the prosecution's case. The perusal of the testimony of the complainant/PW1 Sh. Vishnu Bahadur shows that this witness has given a materially different version in his testimony than that in his original complaint Ex. PW1/A.
10. As per the complaint Ex. PW1/A, on 10.03.2015 at about 09:15 pm in front of Shiv Temple, near the roundabout at Malviya Nagar the accused persons Kanheya and Vijay Kumar called the complainant inside the bus in which they were sitting and the complainant stopped his Scooty. Thereafter the accused persons took the complainant inside the bus and the accused Kanheya robbed him of Rs. 2000/ and both the accused persons beat him with fist blows and kicks. In the complaint Ex. PW1/A the complainant also stated that he did not receive any major injury so he did not want to get his medical examination conducted.
FIR No. 460/15 State Vs. Vijay Kumar & Anr. 4/8
11. During trial, the complainant/PW1 deposed that on the day of the incident at about 07:0007:30 pm (instead of 09:15 pm as alleged in the complaint) he was coming back by Scooty after delivering the food at Saket and when he reached near the roundabout the accused persons were present there, a quarrel occurred between them and the accused persons beat him and took his Rs. 200/ forcibly. He deposed further that he sustained injury on his right knee.
12. The complainant/PW1 did not depose about the accused persons being present inside the bus and calling him out from there nor did he depose that they took him inside the bus. Further, in his testimony PW1/complainant deposed that a quarrel occurred between him and the accused persons but he made no mention of any quarrel in his entire complaint. As to what the quarrel was about, the complainant did not elaborate even in his testimony. Most importantly, the amount of money robbed inexplicably came down to Rs. 200/ (Rupees two hundred) from Rs. 2000/ (Rupees two thousand only) and when the currency notes i.e. two notes of Rs. 500/ (old currency) were opened from the sealed envelope and shown to the complainant/PW1 during trial, he failed to identify the same. Pertinently, the accused Vijay Kumar deposed in S.A. that the amount i.e. Rs. 1000/ which was allegedly recovered from him was his own money. The failure of the complainant/PW1 to identify the currency notes gives rise to a suspicion over the prosecution's version.
13. Ld. APP for the State crossexamined the complainant/PW1 as he was resiling from his previous statement. In a parrot like manner the complainant merely admitted in the crossexamination conducted by Ld. APP for the State that when he reached near the round about both the accused persons were sitting inside the private bus and they stopped him and took him inside the bus.
FIR No. 460/15 State Vs. Vijay Kumar & Anr. 5/8 However the complainant denied the suggestion that the time of the incident was 09:15 pm. He admitted that he signed on the seizure memo of the amount of Rs. 1000/ deposing however that the money was not recovered in his presence. PW1 was put the specific suggestion by Ld. APP for the State that the accused persons snatched Rs. 2000/ from the pocket of his pant forcibly however he denied this suggestion. The whole premise of the prosecution's case that the accused persons robbed the complainant/PW1 of Rs. 2000/ comes crashing down in view of the unconvincing, unsubstantiated and materially altered testimony of the complainant/PW1 regarding the incident vis a vis the complaint averments.
14. The complainant/PW1 in fact also did not support the investigation proceedings regarding arrest of the accused persons in as much as when ld. APP for the State put the suggestions to the complainant/PW1 that he had signed on the arrest memos Ex. PW1/C and Ex. PW1/F, while admitting the suggestions the complainant/PW1 deposed that however the accused persons Vijay Kumar and Kanheya were not arrested in his presence. Similarly PW1 went on to testify that he had signed on the disclosure statement Ex. PW1/G but the IO did not record the disclosure statement in his presence. PW1 totally falsified the prosecution's case regarding the arrest of the accused persons in his presence, he denied the suggestion put by the prosecution that on 01.10.2016 he saw the accused Kanheya Kumar at the DTC bus stand and thereafter he informed the IO who arrested the accused.
15. A grave cloud of doubt is cast over the fairness of the investigation proceedings as a consequence of the aforesaid testimony of the complainant/PW1.
FIR No. 460/15 State Vs. Vijay Kumar & Anr. 6/8
16. Ld. defence counsel put a suggestion to the complainant/PW1 that no such incident occurred so he did not call the police which was denied by the complainant/PW1. However, it is rather strange that the complainant/PW1 did not choose to call the police himself rather the owner of the eating house where he worked i.e. PW3 Sh. Mohd Khalil called the police on 100 number upon being informed of the alleged incident by the complainant. If the complainant had nothing to hide then it would have been a natural conduct on his part to call the police to inform them about the incident but he chose not to do so and gave no reason for the same in his entire testimony.
17. In so far as PW3 Sh. Mohd Khalil is concerned, he deposed about being informed by the complainant that the accused persons assaulted him and snatched the amount of Rs. 2000/ which was paid by the customer for delivery of the food. He admitted in his crossexamination that the accused did not assault the complainant/PW1 in his presence. The version of PW3 Sh. Mohd Khalil belies that of the complainant/PW1 who refused to admit the prosecution's version that the accused persons forcibly robbed him of Rs. 2000/ (Rupees Two thousand) his stand being that he was robbed of Rs. 200/ (Rupees Two hundred).
18. There seems to be no grain of truth in the prosecution's version as the testimony of the complainant/PW1 inspires no confidence at all and is totally uncorroborative of the prosecution version. There is no other eye witness cited and examined by the prosecution in the present case. The accused persons are bound to be granted the benefit of the doubt.
19. In view of the aforesaid discussion the accused persons namely Vijay Kumar and Kanheya are acquitted for the offences alleged.
FIR No. 460/15 State Vs. Vijay Kumar & Anr. 7/8
20. The previous bail bonds of the accused persons Vijay Kumar and Kanheya shall remain in force for a further period of six months from today. File be consigned to record room after necessary compliance. Digitally signed by ANJANI ANJANI MAHAJAN MAHAJAN Date:
2018.08.14 14:03:54 +0530 Announced in the Court (ANJANI MAHAJAN) on 13.08.2018 MM02(SD)/13.08.2018 Certified that this judgment contains 8 pages and each page bears my signatures.Digitally signed by ANJANI
ANJANI MAHAJAN
MAHAJAN Date: 2018.08.14
14:04:04 +0530
(ANJANI MAHAJAN)
MM02(SD)/13.08.2018
FIR No. 460/15 State Vs. Vijay Kumar & Anr. 8/8