Delhi District Court
State vs Ashutosh on 23 May, 2025
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-08, WEST
DISTRICT TIS HAZARI COURTS, DELHI
Presided by: Hem Raj, DHJS
CNR No. DLWT01-010622-2018
SC No. 797/2018
FIR No. 523/2018
PS: Nihal Vihar
U/s 394/398/506/411/34 IPC
& 25/27 Arms Act
In the matter of:
State
Versus
1. Ashutosh
S/o Sh. Chhote Lal
R/o B-26, Vidhya Vihar, Hastal
Uttam Nagar, Delhi
2. Kaushlender
S/o Sh. Ramadhar
R/o H. No. 281, Hastal Village,
Uttam Nagar, Delhi
3. Jatin Yadav
S/o Sh. Raj Pal
R/o A-73, Vidhya Vihar, Hastal,
Uttam Nagar, Delhi
( discharged from the case vide
order dated 01.04.2019)
State Vs Ashutosh Kumar & Ors SC No. 797/2018 FIR No. 523/2018 1/14
4. Suraj Kumar @ Manikant @ Mani
S/o Sh. Raman Singh
R/o H. No. 609, Bhooton Wali Gali,
Nangloi, Delhi
( declared Proclaimed Offender
vide order dated 07.06.2023 )
.........Accused persons
Date of Institution of Case : 30-11-2018
Date of reserving for Judgment : 23-05-2025
Date of pronouncement of Judgment : 23-05-2025
Appearance:
For the State :Dr. S.K Bishnoi, Ld. Additional
Public Prosecutor.
For accused Ashutosh Kumar : Mr. Manish Kumar Singh, Ld.
Counsel.
For accused Kaushlender :Mr. Inderjeet Barnala, Ld. Counsel.
JUDGMENT
1. The accused persons namely Ashutosh, Kaushlender, Jatin Yadav and Suraj Kumar @ Manikant @ Mani were forwarded for trial for the offences u/s 394/398/506/411/34 IPC & u/s 27/54/59 Arms Act.
The case of the prosecution:
2. The prosecution case, in brief, is that on 13.08.2018 at about 4.10 a.m, the complainant Vipin Aggarwal was driving his State Vs Ashutosh Kumar & Ors SC No. 797/2018 FIR No. 523/2018 2/14 Swift car reached at DDA Park near shamshan ghat, Nihal Vihar. At that time, four boys riding on a motorcycle and a scooty came from behind and stopped his car. One boy took out the keys from the ignition and other started forcing him to come out of his car. On being resisted by the complainant, they started beating him. After some time, a truck came and he seeing the truck, picked up his bag and started running towards the truck. When he was trying to aboard the truck, those four boys came running and caught him. He was threatened with a pistol. The truck driver left the spot. The complainant could not aboard the truck. The boys fled away with his bag containing Rs. 40,000/- and his silver colour Swift car. His mobile phone make GIONEE colour black was also in the car. On his aforesaid statement, the FIR was registered.
2.2. During the investigation, the said car was moving slowly on 14.08.2018 near Holi Chowk, shamshan ghat park, Uttam Nagar. Two accused Kaushlender and Suraj were found present in the car. They disclosed the involvement of accused Jatin Yadav and Ashutosh. Suraj also got recovered a katta and two live rounds from the dashboard of the car. Some money was also recovered from their possession. At their instance, co-accused Ashutosh was arrested and a sum of Rs. 6,500/- was got recovered from his possession. Accused Ashutosh led the police to another accused Jatin Yadav at his house. He got recovered a sum of Rs. 7000/-. From their possession, the motorcycle and the scooty used in the offence were recovered. The mobile phone of the complainant was also recovered from the house of accused Suraj at his instance. The complainant identified accused State Vs Ashutosh Kumar & Ors SC No. 797/2018 FIR No. 523/2018 3/14 Ashutosh, Kaushlender and Suraj in the judicial TIP. However, he failed to identify accused Jatin. Though the IO in the charge- sheet stated that accused Suraj has also been identified in the TIP, but his TIP dated 23.08.2018 shows that he refused to participate in the TIP. After completion of investigation, charge-sheet u/s 394/398/506/411/34 IPC & u/s 27/54/59 Arms Act was filed.
3. The Ld. Magistrate committed the case to the Court of Sessions after compliance of the relevant provisions.
The charge against the accused persons:
4. During the trial, vide order on charge dated 01.04.2019, accused Jatin Yadav was discharged from the case and accused Suraj was charged for the offence u/s 392/394/506/34 and u/s 397/398/411 IPC as well as u/s 27 Arms Act. Accused Ashutosh and Kaushlender were charged with the offence u/s 392/394/506/34 IPC. Later on, accused Suraj was declared PO on 07.06.2023. However, on 28.02.2024, a charge u/s 411/34 IPC was also framed against accused Kaushlender for possession of car of the complainant.
The evidence by prosecution:
5. To prove the afore-mentioned charges against the accused persons, the prosecution has examined following witnesses:-
i). PW-1 ASI Shanker Singh, Duty Officer who got the FIR in the case; ii.) PW-2 Sh. Vipin Aggarwal, victim / complainant;
iii). PW-3 HC Jaswant Kumar, he joined the investigation; iv).
PW-4 Retired SI Jai Bhagwan, he conducted investigation;
State Vs Ashutosh Kumar & Ors SC No. 797/2018 FIR No. 523/2018 4/14 and v).PW-5 ASI Sushil Kumar, he conducted the investigation.
6. The prosecution has also relied upon following documentary evidence:-
i). copy of FIR no. 0523/2018 PS Nihal Vihar (Ex.PW-1/A);
ii). endorsement on rukka (Ex.PW-1/B); certificate u/s 65-B IEA (Ex.PW-1/C), statement of complainant Vipin Aggarwal (Ex.PW-2/A),site plan (Ex.PW-2/B), Superdarinma of car of complainant (Ex.PW-2/C), Superdarinama of mobile phone of complainant (Ex.PW-2/D), Superdarinama of release of cash of complainant (Ex.PW-2/E), TIP proceedings regarding accused Jatin Yadav, Suraj, Ashutosh and Kaushlender (Ex.PW-2/F to Ex.PW-2/I), sketch of recovered pistol and live cartridge (Ex.PW-3/A), seizure memo of pistol and live cartridge (Ex.PW-3/B), seizure memo of mobile recovered from accused Suraj (Ex.PW-3/C), arrest memo of accused Kaushlender (Ex.PW-3/D), arrest memo of accused Suraj (Ex.PW-3/E), personal search memo of accused Kaushlender (Ex.PW-3/F), personal search memo of accused Suraj (Ex.PW-3/G),disclosure statement of accused Kaushlender (Ex.PW-3/H),disclosure statement of Suraj (Ex.PW-3/I); arrest memo of Ashutosh (Ex.PW-3/J); personal search memo of accused Ashutosh (Ex.PW-3/K); disclosure statement of accused Ashutosh (Ex.PW-3/L); seizure memo of Rs. 6500/-
(Ex. PW-3/M); seizure memo of cash recovered from accused Kaushlender and Suraj (Ex.PW-3/N & Ex.PW-3/O); seizure memo of Rs. 7000/- recovered from accused Suraj (PO) (Ex.PW-3/P); arrest memo of accused Jatin Yadav (Ex. PW-
State Vs Ashutosh Kumar & Ors SC No. 797/2018 FIR No. 523/2018 5/14 3/Q); personal search memo of accused Jatin Yadav (Ex.PW- 3/R); disclosure statement of accused Jatin Yadav (Ex.PW- 3/S) ; seizure memo of three motor cycles bearing registration nos. DL8SCE 5344, DL8SNC 7572 and DL8SAJ 6909 recovered at the instance of Suraj Kumar (Ex.PW-3/T); seizure memo of three scooties bearing registration nos. DL4SCF 4498, DL10SD 7740, DL8SBV 7956 and DL9SBC 1181 recovered from all accused (Ex.PW-3/U); seizure memo of splendor motorcycle bearing no. DL4SCV2966 recovered from accused Kaushlender (Ex.PW-3/V); seizure memo of scooty bearing no. DL4SCT6750 recovered from accused Ashutosh (Ex.PW-3/W); DD No.7A dated 13.08.2018 (Ex.PW-5/A); rukka (Ex.PW-5/B); seizure memo of Swift car bearing no. DL8CAT5246 recovered from accused Kaushlender (Ex.PW-5/C) and DD No. 24 B dated 14.08.2018 ( Ex.PW-5/D).
Statement u/s 294 Cr.P.C of accused persons:-
7. The statement of accused persons u/s 294 Cr.P.C was recorded wherein they admitted the contents and genuineness of following documents:-
i. Judicial TIP proceedings of accused persons (Ex.PW-2/F to Ex.PW-2/I);
ii. FSL report vde FSL 2018/F-9673 dated 31.07.2019 prepared by Sh. R. Eniyavan in supplementary chargesheet (Ex.AD-1);
iii. Sanction u/s 39 Arms Act by Sh. Rajender Singh Sagar, Addl. DCP in supplementary chargesheet (Ex.AD-2).
State Vs Ashutosh Kumar & Ors SC No. 797/2018 FIR No. 523/2018 6/14 In view of the statement u/s 294 Cr.P.C, witnesses i.e. MHCM PS Nihal Vihal (sl. no.7) and Sh. Abhishek Kumar, the then Ld. MM (sl. no. 8) in the main chargesheet as well as Sh. R. Eniyavan, Assistant Director Ballastic, FSL (sl. no.2) and Sh. Rajender Singh Sagar, Addl. DCP (sl. no.3) from supplementary charge-sheet were dropped from the list of witnesses.
The statement of accused persons u/s 313 Cr.P.C :
8. The statements of the accused persons u/s 313 Cr.P.C were recorded. The incriminating circumstances appearing in evidence against the accused were brought to their notice and their explanation was sought. They all claimed to have been falsely implicated in the present case. Accused persons did not wish to lead defence evidence.
Submissions by Ld. Prosecutor :
9. Ld. Prosecutor while relying upon the oral and documentary evidence on the record argued that the prosecution has been able to prove the case against the accused beyond reasonable doubt.
Submissions by Ld. Counsel for accused persons:
10. On the other hand, Ld. counsel for the accused argued that the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt.
11. I have heard the arguments advanced by the Ld Prosecutor and Ld. Counsel for the accused persons and perused the record.
State Vs Ashutosh Kumar & Ors SC No. 797/2018 FIR No. 523/2018 7/14 Analysis:
12. It is settled principle of criminal jurisprudence that the prosecution has to prove the case against the accused beyond reasonable doubt and the accused has to prove its defence on preponderance of probabilities. What do we mean by the expression 'beyond reasonable doubt'?
13. For our good fortune, the said expression has been defined by the Hon'ble Supreme Court in the various judgments. In the judgment of Paramjeet Singh @ Pamma Vs. State of Uttarakhand, 2011CRI.L.J.663, Hon'ble Mr. Justice Dr. B. S. Chauhan, elaborated the concept of Standard of Proof in a criminal trial in the following terms:-
"11. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination or fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with commission of a crime, the court has to judge the evidence by the yardstick of probabilities, intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions." Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. (Vide: Kashmira Singh Vs. State of Madhya Pradesh, AIR 1952 SC 159; State of Punjab Vs. Jagir Singh Baljit Singh & Anr. AIR 1973 SC 2407;
State Vs Ashutosh Kumar & Ors SC No. 797/2018 FIR No. 523/2018 8/14 Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, AIR 1981 SC 765; Mousam Singha Roy & Ors. Vs.State of West Bengal, (2003) 12 SCC 377; and Aloke Nath Dutta & Ors. Vs. State of West Bengal, (2007) 12 SCC 230).
12. In Sarwan Sigh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, this court observed (Para12) :
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted."
14. Furthermore, in the judgment of Sucha Singh and Another Vs. State of Punjab, (2003 ) 7 SCC 643, the Hon'ble Supreme Court explained the term Beyond Reasonable Doubt and observed as under:-
21. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. [See Gurbachan Singh v.
Satpal Singh and others, AIR 1990 SC 209 : 1990(1) RCR(Crl.) 297 (SC)]. Prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. v. Ashok Kumar Srivastava, AIR 1992 SC 840 :
1992(3) RCR(Crl.) 63 (SC)]. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh and Anr. v. State of (Delhi Admn.) (AIR 1978 SC 1091)]. Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC (PC)
315) quoted in State of U.P. v. Anil Singh, AIR 1988 SC 1998). Doubts would be called reasonable if they are free State Vs Ashutosh Kumar & Ors SC No. 797/2018 FIR No. 523/2018 9/14 from a zest for abstract speculation. Law cannot afford any favourite other than truth.
15.1. The accused persons Ashutosh, Kaushlender and Suraj Ku- mar @ Manikant @ Mani were charged for the offences u/s 392/394/506/34 IPC. Accused Suraj was also charged for the of- fence u/s 397/398 IPC as well as u/s 411 IPC. I shall discuss firstly whether the prosecution has been able to prove those charges against the accused persons.
15.2. To prove the aforesaid charges against the accused per- sons, the prosecution relied upon the testimony of PW-2 Sh. Vipin Aggarwal. He is the complainant / victim and the only eye witness of the offence in question. He was examined-in-chief on 12.07.2019 and thereafter his further examination-in-chief was recorded on 16.10.2023. A careful perusal of his examination-in- chief would reveal that he deposed consistently with the prosecu- tion case. He identified the accused Suraj (PO) as the person who was the most active during the aforesaid incident. However, he did not identify the other accused namely Ashutosh and Kaush- lender as the robbers in the case. He stated that he could not iden- tify the other boys who robbed his car and other articles. 15.3. He was cross-examined by the Ld. Prosecutor. In his cross-examination, his attention was drawn by the Ld. Prosecutor to accused Ashutosh and Kaushlender. However, even after see- ing them, he could not say if they were amongst the other persons who robbed his car and other articles as it was dark and offenders were wearing helmet. He denied the suggestion that due to some compromise or threat, he was not identifying the accused Ashutosh and Kaushlender.
State Vs Ashutosh Kumar & Ors SC No. 797/2018 FIR No. 523/2018 10/14 15.4. Thus, the testimony of PW-1 Sh. Vipin Aggarwal would re- veal that he has failed to identify Ashutosh and Kaushlender as the offenders in this case although he has identified accused Suraj (since Proclaimed Offender) as one of the offenders. Apart from PW-1, there is no other eye witness of the incident and there is no evidence on record to confirm the identity of accused Ashutosh and Kaushlender as the offenders in this case. The IO has also not been able to trace the truck driver, who reached at the spot and his statement was neither recorded during the investigation nor he was cross-examined during the trial.
15.5. To prove the charges against accused Ashutosh and Kaush- lender for the offence u/s 392/394/506/34 IPC, the prosecution was required to prove the identity of the accused as the offenders in this case, which the prosecution has failed to prove.
16. In view of the aforesaid discussions, accused Ashutosh and Kaushlender stand acquitted for the offence u/s 392/394/506/34 IPC.
17. As far as, the charges u/s 392/394/506/34 and u/s 397/398/411 IPC as well as u/s 27 Arms Act against accused Suraj (PO) are concerned, no further discussion is being made herein as accused Suraj is a proclaimed offender and the court shall consider the evidence against him when he is arrested or brought before the court.
Charge u/s 411 IPC against accused Kaushlender: 18.1. The record reveals that vide order dated 20.02.2024, the ac- cused Kaushlender had been charged for the offence u/s 411/34 IPC as he was found in possession of Rs. 7000/-, the part robbed State Vs Ashutosh Kumar & Ors SC No. 797/2018 FIR No. 523/2018 11/14 amount of the complainant PW-2 Vipin Aggarwal. He was also found in possession of Maruti Swift car bearing no. DL 8CAT 5246 of complainant Vipin Aggarwal.
18.2. As far as the recovery of currency note of Rs. 7000/-is con- cerned, again the testimony of PW-2 Sh. Vipin Aggarwal as- sumes importance. In his cross-examination, he stated that he could not say whether the currency notes released to him on Su- perdari, were the same which were robbed on the day of incident. He also admitted that there was no identification mark on the cur- rency notes. Therefore, it is clear that PW-2 was not certain if the currency notes recovered from accused Kaushlender were the same which were robbed from him. He also stated that there was no identification mark on the currency notes. 18.3. The aforesaid statement of the complainant PW-2 Sh. Vipin Aggarwal leaves no doubt in the mind of the court that he has failed to identify the currency notes and it has not been proved on record beyond reasonable doubt that the currency notes for a sum of Rs. 7000/- allegedly recovered from accused Kaushlender were the same, which were robbed from him. Accordingly, this court is of the opinion that the prosecution has failed to prove the charge u/s 411 IPC against accused Kaushlender. 18.4. As far as the recovery of car is concerned, the prosecution case was that accused Kaushlender and accused Suraj Kumar (since PO) were found in possession of the car of the com- plainant. As per the case, on 14.08.2018 i.e. on the next day of the incident, when the police officials were undertaking the in- vestigation and reached at Holi Chowk, the said Swift car was found moving slowly on the road. It was stopped and two per-
State Vs Ashutosh Kumar & Ors SC No. 797/2018 FIR No. 523/2018 12/14 sons were found sitting in it. When the chassis number and en- gine number of the car was checked it came to be known that the said car was belonging to the complainant.
18.5. However, considering the evidence on record, this court is of the opinion that the prosecution has not proved the recovery of the said car beyond reasonable doubt. As per the charge-sheet, accused Kaushlender was found on the driver seat and accused Suraj (since PO) was found sitting beside him. PW-3 HC Jaswant Kumar also deposed the same whereas PW-5 ASI Sushil Kumar deposed to the contrary and he told the name of the driver as Suraj and person sitting besides the driver seat was accused Kaushlender. Therefore, both the witnesses have contradicted each other as to who was driving the said car. In addition to the same, the seizure memo of the car of the complainant Ex.PW-5/C also shows that PW-5 ASI Sushil Kumar did not mention the name of the driver of the car in the same. Therefore, there is no corroboration as well to the oral testimony of the witnesses from the documentary record.
18.6. Therefore, the aforesaid facts would show that the recovery of the car in the manner as tried to be depicted by the IO either did not happen in the same manner or did not happen at all. Be that as it may, but it can be safely concluded that the prosecution has not proved the recovery of the cash and car beyond reason- able doubt. Accordingly, accused Kaushlender also stands ac- quitted from the offence u/s 411 IPC.
Conclusion:
19. In view of the aforesaid discussions, I am of the opinion that the prosecution has failed to prove charges against accused State Vs Ashutosh Kumar & Ors SC No. 797/2018 FIR No. 523/2018 13/14 Ashutosh and Kaushlender and thus, failed to prove its case beyond reasonable doubt. Therefore, both accused Ashutosh and Kaushlender stand acquitted for the offences u/s 392/394/506/34 IPC. Further, accused Kaushlender also stands acquitted from the offence u/s 411 IPC.
20. Earlier bail bonds of both the accused namely Ashutosh and Kaushlender stand discharged. The original documents of their previous respective sureties, if any be returned to them after cancellation of endorsement and upon the identification of the sureties.
21. The bail bonds furnished u/s 437 A Cr.P.C of both the accused namely Ashutosh and Kaushlender are extended for a period of six months for the purpose of Section 437A Cr.P.C. After the expiry of six months, their bail bonds shall stand cancelled and surety bonds discharged. Original documents of sureties, if any be returned after cancellation of endorsement and upon the identification of the sureties. Case property, if any be destroyed after the expiry of period of appeal.
22. File be consigned to Record Room with the direction to be revived as and when accused Suraj @ Manikant @ Manni is arrested or brought before the court.
Digitally
signed by
HEM HEM RAJ
Date:
RAJ 2025.05.23
16:04:18
+0530
Pronounced in the open
Court on 23-05-2025. (HEM RAJ)
Addl. Sessions Judge-08 (West)
Tis Hazari Courts Delhi
State Vs Ashutosh Kumar & Ors SC No. 797/2018 FIR No. 523/2018 14/14