Delhi District Court
State vs . (1). Prem @ Tinda on 28 February, 2015
FIR No. 233/12; U/s 452/307/459/380/411/397/34 IPC; PS KNK Marg D.O.D. 28.02.2015 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 09/14 Unique Case ID No. 02404R0297062012 State Vs. (1). Prem @ Tinda S/o Sh. Mool Chand R/o B4/416, J.J. Colony, Bhalswa Dairy, Delhi. (2) Rajesh @ Tinku S/o Sh. Roop Singh R/o F29/567, Mangolpuri, Delhi. FIR No. : 233/12 Police Station : KNK Marg Under Sections : 452/307/459/380/411/397/34 IPC Date of committal to Sessions Court: 07.11.2012 Date on which judgment was reserved: 28.02.2015 Date on which Judgment pronounced: 28.02.2015 JUDGMENT
BRIEF FACTS OF THE CASE
1. The case of the prosecution as mentioned in the chargesheet is as under:
(i). That on 21.07.2012, intimation was received in PS K.N. Katju Marg which was recorded vide DD no. 76A and was entrusted to SI State Vs Prem @ Tinda etc. ("Acquitted") Page 1 of 16 FIR No. 233/12; U/s 452/307/459/380/411/397/34 IPC; PS KNK Marg D.O.D. 28.02.2015 Suresh Chand for appropriate action;
(ii). On receipt of DD No. 6A, SI Suresh Chand (PW9) alongwith Ct. Om Singh (PW7) reached the place of information i.e. D8/9, Sector15, Rohini, where it was revealed that injured had already been removed to BSA Hospital by PCR Van. After leaving Ct. Om Singh at the spot, SI Suresh Chand went to BSA Hospital and collected MLC of injured Sudhir Kumar who was declared fit for statement, but his statement could not be recorded as injured had been taken to Operation Theater.
(iii). Accordingly, SI Suresh Chand returned back to the spot; called crime team and dog squad there and also lifted blood stains from the place of occurrence and got the FIR U/s 452/307 IPC registered through Ct. Om Singh;
(iv). After registration of FIR, investigation was entrusted to SI Suresh Chand who got the spot photographed through crime team photographer and recorded statements of the witnesses;
(v). It is further case of prosecution that on 23.07.2012, statement of injured Sudhir Kumar was recorded wherein he claimed that during the intervening night of 20/21.07.2012 at about 3 am, three boys had trespassed into his house. When he enquired from them, he was overpowered by those boys. One of them was having knife and other was having screw driver with him. All the said three boys committed robbery of his two mobile phones, R.C. of car, cash amount of Rs. 40005000, Voter Icard, PAN Card, etc. State Vs Prem @ Tinda etc. ("Acquitted") Page 2 of 16 FIR No. 233/12; U/s 452/307/459/380/411/397/34 IPC; PS KNK Marg D.O.D. 28.02.2015
(vi). It is mentioned in the chargesheet that on 26.07.2012, accused Prem @ Tinda was arrested on the basis of secret information and he confessed his involvement alongwith his associates in the commission of offence involved in the present case.
(vii). On 26.07.2012, accused Ravinder and Rajesh were arrested in some other case with PS South Rohini and on the basis of their disclosure statements, they were formally arrested in the present case;
(viii). On 16.08.2012, accused Prem @ Tinda and Rajesh @ Tinku refused to participate in his judicial TIP whereas Ravinder could not be identified by complainant. Accordingly, Ravinder was got released during the course of investigation. After completion of investigation, chargesheet was filed before the Court of Ld. M.M.
2. After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
CHARGES FRAMED AGAINST THE ACCUSED PERSONS
3. After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame charges u/s 394/459/307/34 IPC against both the accused persons namely Prem @ Tinda and Rajesh @ Tinku. Separate charge in respect of Section 412 IPC was also framed against accused Prem @ Tinda vide order dated 15.01.2013 to which accused persons pleaded not guilty and claimed trial.
State Vs Prem @ Tinda etc. ("Acquitted") Page 3 of 16 FIR No. 233/12; U/s 452/307/459/380/411/397/34 IPC; PS KNK Marg D.O.D. 28.02.2015
4. In support of its case, prosecution examined nine witnesses namely PW1 SI Anil Kumar, PW2 ASI Ramesh Kumar, PW3 Sh. Sudhir Kumar, PW4 Dr. Deepti Bhalla, PW5 Inspector V.N. Jha, PW6 Ct. Sandeep, PW7 Om Singh, PW8 HC Ram Babu and PW9 SI Suresh Chand during trial.
5. It may be mentioned here that accused Rajesh @ Tinku and ld. counsel of accused Prem @ Tinda gave no objection on 08.01.2015 for release of documents i.e. PAN Card, Election Icard and R.C. of vehicle bearing registration no. DL2CV4118 seized in this case and made statement that they shall not dispute the identity of said documents during trial.
6. It may also be mentioned here that Ld. Additional PP dropped PW Ct. Chander Bhan from the list of witnesses on 27.02.2015 as he was the witness of repetitive facts in respect of which other witnesses namely PW8 HC Babu Ram and PW9 SI Suresh Chand had already been examined during trial. Ld. Additional PP also dropped PW HC Shiv Om on the ground that he had simply lifted chance prints from the spot but no report was received from Finger Print Bureau.
7. Thereafter, statements U/s 313 Cr.P.C. of both the accused persons namely Prem @ Tinda and Rajesh @ Tinku were recorded during which all the incriminating evidence which came on record, were put to them which they denied. Both the accused persons claimed that they are innocent and have been falsely implicated in this case. However, both the accused persons opted not to lead any evidence towards their defence.
8. I have heard Sh. Pankaj Bhatia, Ld. Additional PP on behalf of State and Ld. Amicus Curiae Sh. Prashant Jain Adv. on behalf of both the State Vs Prem @ Tinda etc. ("Acquitted") Page 4 of 16 FIR No. 233/12; U/s 452/307/459/380/411/397/34 IPC; PS KNK Marg D.O.D. 28.02.2015 accused persons. I have also gone through the material available on record.
9. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record. The said testimonies are detailed as under: PUBLIC WITNESSES
10. PW3 Sh. Sudhir Kumar: He is the complainant in this case. As per the case of prosecution, he is the only star witness examined during trial. He deposed on the lines of prosecution story to the extent that incident of robbery had been committed on the alleged date, time and place by 23 boys who were having knife and screw driver with them. He also deposed that one of the offenders had given stab injury on right side of his abdomen on which blood had oozed out from his abdomen. However, he did not identify any of the two accused herein to be amongst the offenders/robbers who had committed robbery against him. He deposed that after about 1 ½ months of the incident, he had visited Rohini Court where he had seen one boy in the custody of police and face of said boy was resembling with one of the assailants involved in the incident.
This witness categorically deposed that he cannot identify assailants even if shown to him as it was dark at that time. He also deposed that none of the assailants was present in the Court. Accordingly, this witness was cross examined by Ld. Additional PP after permission of the Court. However, he did not support the prosecution story on the aspect of identity of State Vs Prem @ Tinda etc. ("Acquitted") Page 5 of 16 FIR No. 233/12; U/s 452/307/459/380/411/397/34 IPC; PS KNK Marg D.O.D. 28.02.2015 these two accused to be robbers involved in the incident in question. He also denied to have made relevant portions of the statement MarkX in this regard. He has not been cross examined on behalf of accused persons despite grant of opportunity.
POLICE WITNESSES
11. PW1 SI Kumar: This witness was Incharge of Mobile Crime Team, Outer District which had visited the scene of crime on 21.07.2012. He deposed that after carrying out inspection of the spot, he prepared his report Ex.PW1/A and handed over the same to IO SI Suresh Chand. He further deposed that in the main room, blood was lying on the floor and clothes were lying scattered in the room having blood stains. HC Shiv Om lifted three chance prints from the spot and Ct. Sandeep took the photographs.
In his cross examination, he deposed that two chance prints were lifted from the drawer of almirah and one chance print was lifted from the cover of mobile. He further deposed that no weapon was found at the spot in his presence. He denied the relevant suggestions put to him on behalf of accused persons.
12. PW2 ASI Ramesh Kumar: He is the Duty Officer. He deposed that on 21.07.2012 at about 3.27 am, he had received a call from Control Room regarding stabbing of person after entering in H. No. D8/9, Sector15, Rohini, Delhi. He had recorded DD No. 6A in this regard and same was assigned to HC Rakesh and lateron. Investigation was assigned to SI Suresh Chand. He proved copy of DD no. 6A as Ex.PW2/A. State Vs Prem @ Tinda etc. ("Acquitted") Page 6 of 16 FIR No. 233/12; U/s 452/307/459/380/411/397/34 IPC; PS KNK Marg D.O.D. 28.02.2015 He also proved factum regarding registration of FIR No. 233/12 and proved copy of said FIR as Ex.PW2/B and his endorsement Ex.PW2/C made on the rukka.
In his cross examination, he denied the relevant suggestions put to him on behalf of accused persons.
13. PW5 Inspector V.N. Jha: This witness deposed that on 25.07.2012, he received information through Ct. Raj Kumar that some boys were sitting in the park in the area of H32 Block, Sector3, Rohini and their faces resembled with the accused involving in case FIR No. 152/12 U/s 302/460/34 IPC registered at PS South Rohini. On receipt of said information, he alongwith other staff went there and surrounded the persons sitting in the park and apprehended three persons namely Ravinder @ Tunda, Rajesh @ Tinku and Rushi. After interrogation, said persons were arrested in case FIR No. 152/12. During interrogation, accused Ravinder @ Tunda and Rajesh @ Tinku confessed their involvement in the commission of offence of the present case. He proved copy of disclosure statements of accused Ravinder and Rajesh @ Tinku as Mark P5/A and Mark PW5/B respectively.
14. He further deposed that he had given information to the police officials of PS K.N. Katju Marg regarding disclosure of accused persons about the commission of offence of present case, vide DD No. 20A. He proved attested copy of DD No. 20A as Ex.PW5/A. He further deposed that on 05.08.2012, SI Suresh Chand of PS K.N. Katju Marg came to PS South Rohini and he had handed over photocopy of disclosure statements to SI Suresh Chand.
State Vs Prem @ Tinda etc. ("Acquitted") Page 7 of 16 FIR No. 233/12; U/s 452/307/459/380/411/397/34 IPC; PS KNK Marg D.O.D. 28.02.2015 In his cross examination, he denied the relevant suggestions put to him on behalf of accused persons.
15. PW6 Ct. Sandeep: This witness was one of the members of Mobile Crime Team which had visited the spot on 21.07.2012. He deposed that he had taken 9 photographs. He proved negatives of the photographs as Ex.PW6/A1 to Ex.PW6/A9 and positives photographs as Ex.PW6/B1 to Ex.PW6/B9. This witness has not been cross examined by accused persons despite grant of opportunity.
16. PW7 Ct. Om Singh: This witness had accompanied SI Suresh Chand after receipt of DD No. 6A of 21.07.2012 to the place of incident. He deposed that he had stayed back at the spot for preservation of scene of crime while SI Suresh Chand had gone to BSA Hospital. Thereafter, SI Suresh Chand had returned back to the spot and handed over rukka to him. Accordingly, he got the FIR registered at PS K.N. Katju Marg. He has not been cross examined on behalf of accused persons despite grant of opportunity.
17. PW8 HC Ram Babu and PW9 SI Suresh Chand: Out of said two witnesses, PW9 is IO of the case whereas PW8 had accompanied PW9 during investigation on 26.07.2012. Both the witnesses deposed that accused Prem @ Tinda was apprehended by them on the basis of secret information from corner of park opposite Masjid of Sector15, Rohini, Delhi. Accused Prem @ Tinda was arrested and his personal search was conducted vide memos Ex.PW8/A and Ex.PW8/B respectively. Said accused also made disclosure statement Ex.PW8/C and in pursuant to that disclosure statement, State Vs Prem @ Tinda etc. ("Acquitted") Page 8 of 16 FIR No. 233/12; U/s 452/307/459/380/411/397/34 IPC; PS KNK Marg D.O.D. 28.02.2015 said accused got recovered robbed purse, Voter ICard, R.C. of vehicle no. DL2CW4118 and PAN Card in the name of complainant Sudhir Kumar alongwith some documents. Said purse and documents were seized vide memo Ex.PW18/D.
18. In his cross examination, PW8 deposed that although departure entry was made while they left PS on 26.07.2012 but he could not disclose number of departure entry. He admitted that no such DD entry of their departure has been placed on record. He deposed that there were residential houses situated near the place of arrest of accused Prem @ Tinda, but IO did not request any resident of those houses to join the investigation. IO did not make any effort to join any public person even at the time of conducting writing work at the spot. He also admitted that recovered purse as well as recovered articles were not sealed by IO. He also admitted that complainant was not present at the time of recovery of those articles and he had no knowledge if IO had got TIP of those articles conducted through complainant during investigation or not.
19. In his cross examination, PW9 admitted that he did not move any application for conducting TIP of recovered purse and documents during investigation. He also admitted that purse was not sealed after its recovery. He also admitted that there were residential houses situated near the place of arrest of accused Prem @ Tinda but he did not make any effort to join any resident of said locality during investigation. He also did not prepared site plan of the place of recovery. The complainant was not present with them on 26.07.2012. He did not take finger prints of any of the accused for getting the State Vs Prem @ Tinda etc. ("Acquitted") Page 9 of 16 FIR No. 233/12; U/s 452/307/459/380/411/397/34 IPC; PS KNK Marg D.O.D. 28.02.2015 same matched with the chance prints lifted by crime team officials from the spot. He denied the suggestion that relevant articles i.e. purse, Voter ICard, R.C. of the vehicle, etc. were planted upon accused Prem @ Tinda. He further denied the suggestion that accused Prem @ Tinda and Rajesh @ Tinku had not made any disclosure statements.
MEDICAL WITNESSES
20. PW4 Dr. Deepti Bhalla: This witness deposed that she had examined injured Sudhir Kumar S/o Sh. Vikram Singh, at about 3.40 am on 21.07.2012 at BSA Hospital. Upon his medical examination, she found that injured Sudhir Kumar had suffered an incised wound with sharp edges approximately 3 x 1 cm in size with protrusion of bowel loop from it was present over the right hypochondrium, around 8 cm above the umbilicus and approximately 3 cm right to the midline. She had prepared MLC Ex.PW4/A of said injured. She further deposed that after giving primary treatment, his Xrays were done and the patient was referred to S.R. (Surgery) for expert opinion and further management. She also deposed that as per her opinion, injuries were likely to be caused by sharp weapon.
This witness has not been cross examined by accused persons despite grant of opportunity.
ARGUMENTS ADVANCED AND CASE LAW CITED
21. Ld. Additional PP for State argued that prosecution has been able to establish the charge in respect of offence U/s 394/307/459/34 IPC against State Vs Prem @ Tinda etc. ("Acquitted") Page 10 of 16 FIR No. 233/12; U/s 452/307/459/380/411/397/34 IPC; PS KNK Marg D.O.D. 28.02.2015 all the accused persons beyond doubt. In support of said submission, he heavily relied upon the testimony of public witness named above. He submitted that in view of ocular evidence in the form of testimony of said public witness coupled with medical evidence produced during trial, it has been proved by the prosecution that the accused persons in furtherance of their common intention committed lurking house trespass after sunset, committed robbery of valuable articles and also attempted to commit murder of victim Sudhir Kumar by giving knife blow on his abdomen as well as on his back side and therefore, both of them should be convicted accordingly.
22. On the other hand, Ld. defence counsel appearing on behalf of accused persons vehemently argued that prosecution has miserably failed to establish the charges levelled against accused persons beyond shadow of doubt. He also referred to the testimony of public witness examined during trial, in order to submit that said witness failed to identify any of the accused during trial and thus, there is no evidence to show that these two accused had committed lurking house trespass or had committed the robbery or were, in any manner, involved in the incident in question.
23. As already discussed above, both the accused have been charged with offences punishable U/s 394/459/307/34 IPC. Further, accused Prem @ Tinda has also been charged with offence U/s 412 IPC.
24. In order to prove the offence U/s 307 IPC, it was essential for the prosecution to prove the following ingredients:
i). That the accused attempted to cause death of any person; State Vs Prem @ Tinda etc. ("Acquitted") Page 11 of 16
FIR No. 233/12; U/s 452/307/459/380/411/397/34 IPC; PS KNK Marg D.O.D. 28.02.2015
ii). That the death was attempted to be caused by, or in consequence of, the act of the accused;
iii). That such act was done by the accused with intention of causing death; or that it was done with intention of causing such bodily injury as: (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death; or that the accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.
In other words, it is sufficient if the prosecution is able to establish that the act done by accused was capable of causing death and there was an intention to cause death or knowledge that such act was likely to cause death.
25. In order to prove the offence U/s 394 IPC, it was essential for the prosecution to prove the following ingredients: I. That the accused persons had committed the robbery within the meaning of Section 390 IPC; and II. That the accused persons had voluntarily caused hurt to any person while committing or attempting to commit robbery.
26. Now reverting back to the facts of the present case. The prosecution has examined one public witness i.e. PW3 Sh. Sudhir Kumar during trial. PW3 is the victim himself who alone had witnessed the incident in question as per the case of prosecution as mentioned in the chargesheet. State Vs Prem @ Tinda etc. ("Acquitted") Page 12 of 16 FIR No. 233/12; U/s 452/307/459/380/411/397/34 IPC; PS KNK Marg D.O.D. 28.02.2015
27. However, the sole eye witness of the incident failed to identify any of the accused herein to be the assailants involved in the commission of robbery committed against him. He categorically deposed during trial that he could not see the faces of offenders due to darkness. He also testified that none of the robbers was present in the Court when his testimony was recorded during trial.
28. Except PW3 Sudhir Kumar, no other witness has been produced by prosecution during trial who may have seen the offenders while committing robbery against the complainant. In other words, the prosecution could not produce sufficient evidence on record so as to connect the accused herein with the commission of offences punishable U/s 307/394/459/34 IPC. There is no evidence available on record, which may conclusively establish that these two accused had infact committed lurking house trespass on the alleged date, time and place or they had committed robbery against the complainant or they had voluntarily caused hurt to complainant while committing or attempting to commit the robbery.
29. Moreover, there is no recovery of any weapon of offence either from the possession of these two accused persons or at their instance. It is painful to note that concerned IO did not care to obtain finger print of the accused for getting the same matched with the chance prints lifted from the scene of crime by Chance Print Proficient. No explanation has been furnished by IO i.e. PW9 SI Suresh Chand in this regard. Thus, Court is of the considered view that prosecution has failed to establish the charges U/s 394/459/307/34 IPC beyond reasonable doubt.
State Vs Prem @ Tinda etc. ("Acquitted") Page 13 of 16 FIR No. 233/12; U/s 452/307/459/380/411/397/34 IPC; PS KNK Marg D.O.D. 28.02.2015
30. This brings me down to offence U/s 412 IPC charged against accused Prem @ Tinda with regard to recovery of robbed purse containing Voter ICard, R.C. and PAN Card, etc. of complainant. Although, Ld. Additional PP vehemently argued that factum of recovery of those robbed articles from the possession of accused Prem @ Tinda, stood proved in view of testimonies of PW8 HC Ram Babu and PW9 SI Suresh Chand. Therefore, said accused should be convicted for offence U/s 412 IPC or alternatively, for offence U/s 411 IPC. However, I am unable to find myself in agreement with those submissions made by Ld. Additional PP for several reasons.
31. Firstly, it is an undisputed case of prosecution that complainant i.e. PW3 Sudhir Kumar was not present at the time of alleged recovery of robbed articles on 26.07.2012. That being so, it was the duty of investigating agency to get the TIP of case property conducted through complainant during investigation but unfortunately, same has not been done for the reasons best known to the investigating agency. IO i.e. PW9 SI Suresh Chand admitted in his cross examination that he did not move any application for TIP of recovered case property but offered no explanation for doing so. Secondly, the recovered articles were not sealed by IO after its alleged recovery. Again this fact has been admitted PW8 HC Ram Babu and PW9 SI Suresh Chand (IO) that those articles were not sealed by them after alleged recovery thereof. It is nowhere the case of prosecution that specific mark of identification of purse was already disclosed by complainant to the police due to which there was no necessity to seal the said purse or for getting its TIP conducted through complainant. Since the recovered articles were not kept in sealed State Vs Prem @ Tinda etc. ("Acquitted") Page 14 of 16 FIR No. 233/12; U/s 452/307/459/380/411/397/34 IPC; PS KNK Marg D.O.D. 28.02.2015 pullanda, the possibility of planting of case property upon said accused cannot be ruled out. Same also creates reasonable doubt in the prosecution case about the recovery of those articles from the alleged date, time and place. Thirdly, no effort is shown to have been made by investigating agency to join independent witness either at the time of recovery of those articles or even subsequent thereof despite their availability. In this regard, the relevant portions of testimonies of PW8 HC Ram Babu and PW9 SI Suresh Chand are significant. Both these witnesses have categorically admitted that there were several residential houses situated near the place of alleged recovery of articles, but still no effort was made by them to join any resident of those houses in order to witness the recovery of those articles. They also admitted that no effort was made to join any public person while carrying out the writing work. It is relevant to note here that recovery is alleged to have been effected some where at about 9/9.30 pm and that too from near District park, where public persons would have been definitely available. In this backdrop, non joining of independent witness during recovery of articles casts serious doubt about the recovery of those articles at the instance of accused Prem @ Tinda. Thus, the entire recovery becomes doubtful.
32. Moreover, it is well settled law that whenever two views are possible on the basis of evidence available, the view in favour of accused should be adopted by the Court. Still, if any authority is required, then reference with advantage can be made to the judgment reported at 1992(2) Crimes 870 (H.P.).
State Vs Prem @ Tinda etc. ("Acquitted") Page 15 of 16 FIR No. 233/12; U/s 452/307/459/380/411/397/34 IPC; PS KNK Marg D.O.D. 28.02.2015
33. In the light of aforesaid discussion, Court is of the view that prosecution has also miserably failed to establish the charge U/s 412 IPC or 411 IPC against accused Prem @ Tinda beyond shadow of doubt. Consequently, both the said two accused persons are hereby acquitted of the charges levelled against them. File be consigned to Record Room after compliance of Section 437A Cr.P.C, as per the rules.
Announced in open Court today
On 28.02.2015 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
State Vs Prem @ Tinda etc. ("Acquitted") Page 16 of 16