Delhi District Court
State vs . Vikas @ Neta And Nand Kishore on 9 July, 2018
IN THE COURT OF SH. VISHAL PAHUJA, MM-04,
WEST DISTRICT, TIS HAZARI COURTS, DELHI
STATE VS. VIKAS @ NETA AND NAND KISHORE
FIR NO. 226/15
PS: MOTI NAGAR
U/S: 392/394/411/34 IPC
JUDGMENT
Case No. : 64277/16
Date of commission of offence : 17.03.2015 & 24.04.2015
Date of institution of the case : 24.07.2015
Name of the complainant : Sh. Shubham Pathak
Name of accused and address : A-1 Vikas @ Neta
s/o Sh. Mahender Singh
r/o H.no. 82, Guru Hari
Krishan Nagar, Uttam
Nagar, Delhi.
(already convicted)
A-2 Nand Kishore @ Vicky
s/o Sh. Devi Sahai, r/o
H.no. P-16, JJ Colony,
Pocket 3, Sector -16,
Dwarka, Delhi.
Offence complained of or proved : U/s 392/394/411/34 IPC
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date on which reserved for judgment : 02.07.2018
Date of judgment : 09.07.2018
******************************************************************************************************************************* BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. This is the prosecution of accused persons Vikas @ Neta and Nand FIR No. 226/15, PS Moti Nagar Page 1/10 Kishore pursuant to charge sheet filed by PS Moti Nagar U/s 392/394/411/34 IPC subsequent to the investigation carried out by them in FIR No.226/15.
2. As per the prosecution, on 17.03.2015 at about 11.15 PM in front of H.no. F-126, Sudershan Park, New Delhi, accused Vikas @ Neta along with his accomplice in order to commit theft and while committing theft, for that end voluntarily caused hurt and wrongful restrain to the complainant Shubham Pathak and had taken away a Samsung Galaxy Mobile Phone having no. 9711198218 and 7070529859 from his hand. Accused Vikas @ Neta on the same date, time and place along with his accomplice voluntarily caused hurt to the complainant Shubham Pathak in committing the robbery by giving simple injury. The accused persons namely Vikas @ Neta and Nand Kishore on 24.05.2015 at 09.00 PM at Avon Park, Janak Puri, near Pankha road were found in possession of one Samsung Dual phone of Black colour with SIM which was recovered from the pocket of accused Nand Kishore that was robbed from victim Shubham Pathak in furtherance of common intention of the accused persons. Accordingly, after the investigation, police filed the present charge sheet against the accused persons for commission of offence punishable u/s 392/394/411/34 IPC.
3. Complete set of charge sheet and other documents were supplied to both the accused persons. After hearing arguments, charge for offence punishable under section 392/394 IPC was framed against accused Vikas @ Neta and charge for offence punishable u/s 411/34 IPC was framed against both the accused persons namely Vikas @ Neta and Nand Kishore to which they pleaded not guilty and claimed trial. During the proceedings, accused Vikas @ Neta pleaded guilty to the charge framed against him, hence he was convicted and sentenced accordingly on 01.07.2017.FIR No. 226/15, PS Moti Nagar Page 2/10
MATERIAL EVIDENCE IN BRIEF:
4. The prosecution in support of present case has examined 12 witnesses in total.
5. PW1 Sh. Shubham Pathak deposed that on 17.03.2015 he was going to his house at Sudershan Park after playing/practice of snooker at Patel Nagar. At about 11.15 PM when he reached in front of house no. F-
126, Sudershan Park and was calling his brother Vikas on mobile phone two boys came from back side and caught hold and pull down him and snatched his mobile phone make Samsung Galaxy Grand II of dual SIM bearing no. 9711198218 and 7070529859. It is further stated that one of the boy had taken the purse from right back pocket. It is stated that purse was containing currency note of Rs. 5,000/-, DL, Voter ID Card and another documents. It is stated that they pulled him down and ran away from the spot. It is further stated that PW-1 was beaten by them due to which he sustained injuries on his head. It is stated that he called his brother and also called the police. Police official came and took PW-1 to Acharya Bhikshu Hospital for medical. It is stated that police official recorded his statement Ex. PW1/A. It is further deposed that after one month he was called by the police that his mobile phone has been recovered. It is further stated that PW1 was called by the police for TIP in Tihar Jail and he identified accused Vikas who snatched the mobile phone but could not identify the other accused person. The photocopy of bill of mobile is Mark X. PW1 was cross-examined on behalf of accused persons.
6. PW-2 HC Amrit Singh deposed that on 17.03.2015 he was on emergency duty from 08.00 PM to 08.00 AM. It is stated that at about 11.15 PM, DD no. 51A was received qua snatching of mobile at F Block FIR No. 226/15, PS Moti Nagar Page 3/10 Sudershan Park, he along with Ct. Kailash went to the spot and no one was found there but it was informed that the PCR van has taken the injured to Acharya Bhikshu Hospital and met the complainant namely Sh. Shubham Pathak. PW-2 stated that he recorded the statement of injured as Ex. PW1/A. It is further stated that he prepared rukka at the hospital which is Ex. PW2/A and handed over the same to Ct. Kailash for registration of FIR. It is stated that Ct. Kailash went to the PS along with the copy of rukka and came at the hospital along with SI Yograj who conducted the further investigation of the case.
7. PW-3 ASI Mohan Lal deposed qua the manner and his involvement in the investigation. This witness was cross-examined on behalf of accused persons.
8. PW-4 Sh. Amit Kumar Shehrawat brought the record of case file FIR no. 312/15 u/s 312/15 u/s 379/411 IPC, PS Hari Nagar bearing Goshwara No. 89/15. the file is also attached with original kalandra of DD no. 15 dt. 24.04.2015 Special Staff West District PS Janak Puri along with the original copy of pointing out memo by accused Vikas @ Neta and Nand Kishore by which they pointed out in front of house no. F-1/26, Sudershan Park, New Delhi, from where they have snatched one mobile phone and one purse containing cash of Rs. 5,000/-, ATM card etc, one seizure memo of mobile phone, Samsung dual SIM taken u/s 102 Cr.P.C. from accused Nand Kishore, arrest memo and personal search memo of accused Nand Kishore and Vikas @ Neta, original of the above documents seen and return. The photocopy of the pointing out memo is Ex. PW4/A, seizure memo Ex. PW4/B, arrest memo of accused Nand Kishore Ex. PW3/C and his personal search memo Ex. PW4/D and arrest memo of accused Vikas Ex. PW4/E and personal search memo Ex. PW4/F. This witness was not cross examined on behalf of accused persons.
FIR No. 226/15, PS Moti Nagar Page 4/109. PW-5 HC Raj Singh deposed that on 09.06.2015 he was on duty as MHC(M) received one mobile phone make of Samsung from PS Janak Puri vide RC no. 49/21/15 and deposited the same in malkhana vide entry no. 3061/15 in register no. 19. Photocopy of same is Ex. PW5/A. The said mobile was released on superdari to Sh. Shubham Pathak in the month of June, 2015. This witness was cross examined on behalf of accused persons.
10. PW-6 Ct. Parvesh Kumar deposed qua the manner and his involvement in the investigation. He exhibited on record arrest memo of accused Nand Kishore as Ex. PW6/A and personal search of accused Nand Kishore as Ex. PW6/B. It is stated that accused Nand Kishore refused to sign on the arrest memo and personal search memo. This witness was cross examined by both the accused persons.
11. PW-7 Ct. Kailash Chand deposed on the same lines as that of PW-2 HC Amrit. This witness was cross examined on behalf of accused persons.
12. PW8 SI Jaswant Singh was the Duty Officer on 18.03.2015, who exhibited on record FIR as Ex.PW8/A, endorsement on the rukka as Ex.PW8/B, copy of DD no. 5A as Ex. PW8/C and photocopy of DD no. 51A as Ex. PW8/D. This witness was not cross-examined on behalf of accused.
13. PW-9 HC Shashi Kant stated that on 24.04.2015 he received a secret information at about 06.30 PM about two persons involved in snatching case coming at A1, Park, Jangpuri. It is further stated that PW9 asked public persons to join the raiding party but they refused to join the FIR No. 226/15, PS Moti Nagar Page 5/10 same however, HC Sunil, Ct. Surender Lal and Ct. Surinder constituted the raiding party under the supervision of SI Charan Singh. It is further stated that at 08.00 AM both the accused persons came in the park and pointed by informer, they were arrested vide arrest memo Ex. PW4/E qua accused Vikas and Ex.PW4/C qua accused Nand Kishore. This witness exhibited on record the personal search memo of both the accused persons as Ex. PW4/F and Ex. PW4/D. A mobile make of Samsung Galaxy was recovered from the accused Nand Kishore that was seized vie seizure memo Ex. PW4/B, nokia mobile phone recovered from the possession of accused Vikas was seized vide seizure memo Ex. PW9/A. The mobile recovered from the possession of accused Nand Kishore was required in case FIR no. 226/15 PS Moti Nagar. The pointing out memo is exhibited as Ex. PW4/A. This witness also exhibited on record site plan Ex. PW9/C, disclosure statements of the accused persons as Ex. PW9/D and Ex.PW9/E. The kalandra u/s 41.1(d) Cr.P.C. was prepared and the accused persons were produced before Ld. Magistrate. This witness was cross examined by the accused persons.
14. PW-10 Dr. Irshad Hussain Ansari exhibited on record MLC of complainant/injured Shubham Pathak as Ex. PW10/A. This witness was not cross examined by accused persons.
15. PW11 SI Yograj Dalal was the IO of the case, who deposed qua the manner and his involvement in the investigation. This witness relied upon several documents which are already exhibited on record in the testimony of other witnesses. This witness exhibited on record site plan as Ex. PW11/A. The disclosure statement of accused Vikas @ Neta is Ex. PW11/B. This witness after completion of the investigation filed the charge sheet. This witness was cross-examined on behalf of accused persons.
16. PW12 Sh. Pradeep Kumar brought the record of case FIR no.
FIR No. 226/15, PS Moti Nagar Page 6/10312/15 against accused Vikas @ Neta and the said record is Ex. PW12/A.
17. No other PW was left to be examined, hence PE was closed.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
18. Statement of accused recorded separately U/s 313 Cr.P.C in which all the incriminating circumstances appearing in evidence were put to them. The accused controverted and denied the allegations levelled against him. It is stated by him that nothing was recovered from his possession and the recovery was later on planted upon him by the police. Accused opted not to lead any defence evidence.
ARGUMENTS:
19. Ld. APP for State has argued that prosecution witnesses have supported the prosecution and their testimony has remained unrebutted. That on a combined reading of testimony of prosecution witnesses, offence U/s 411/34 IPC is proved beyond doubt against the accused Nand Kishore.
20. On the other hand, Ld. Counsel for accused has stated that there is no legally sustainable evidence against the accused. It is argued that the recovery has been planted upon the accused and there is no identification of accused as perpetrator of the crime. It is further argued that prosecution has failed to build the case against accused Nand Kishore, hence he is entitled to be acquitted of the offence charged against him.
FINDINGS:
21. Arguments adduced by Ld. APP for State and Ld. Defence Counsel for the accused have been heard. Evidences and documents on record perused carefully.
FIR No. 226/15, PS Moti Nagar Page 7/1022. I have bestowed my thoughtful consideration to the rival submissions made before me. Accused Nand Kishore is indicted for the offences U/s 411/34 IPC. Section 411 IPC provides punishment for dishonestly receiving and retaining any stolen property knowing or having reason to believe the same to be stolen property.
23. After appreciating the evidence and going through the testimony of the prosecution witnesses this Court finds the accused not guilty for any offence charged herein and he deserves acquittal for the following reasons:-
24. The complainant PW1 Sh. Shubham Pathak during his cross examination failed to identify the accused Nand Kishore. As the accused has been charged u/s 411 IPC the aspect of recovery from his possession was required to be established. At the outset it is pertinent to mention that none of the public witness has joined the investigation and no independent witness except the police official was present at the time of recovery of the case property from the accused Nand Kishore.
25. Non joining of public witnesses causes a dent in credibility of prosecution version. Had public witnesses witnessed search of accused, prosecution version would have been more authentic. This is not to say that testimony of police officials is not reliable but addition of public witnesses before search of accused would have made prosecution version more reliable. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story in view of the following case law. In the case of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
FIR No. 226/15, PS Moti Nagar Page 8/10"It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
In view of the observation given above, the recovery of the case property from the possession of accused Nand Kishore comes under strong doubt. The planting of property cannot be ruled out.
26. PW10 SI Yograj Dalal stated that no original bill of the mobile phone was handed over to him by the complainant nor there was any document procured during the investigation to show that the mobile phone recovered from the possession of the accused Nand Kishore was in fact stolen from the possession of the complainant. The complainant being owner of mobile is not proved on record. It is also admitted by PW11 during his cross examination that he has not obtained the CDR from the service provider nor confirmed the IMEI number of the recovered mobile phone. In such circumstances, there is no cogent evidence on record to show that the allegedly recovered mobile phone is the same mobile that was stolen from the possession of the complainant whereas the requirement of section 411 IPC i.e. dishonestly receiving or retaining the stolen property which has not been complied with.
FIR No. 226/15, PS Moti Nagar Page 9/1027. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
28. The testimony of prosecution witnesses does not inspire confidence due to several material inconsistencies. The recovery of case property itself is under cloud. Thus, in the considered view of this Court, the prosecution failed to prove its case beyond reasonable doubt. The evidence coming on record entitles the accused for the benefit of doubt. Therefore, the accused Nand Kishore is hereby acquitted of the charges levelled against him in the present case.
29. Requirements of Section 437-A Cr.P.C have already been complied with. File be consigned to Record Room.
Digitally signed VISHAL by VISHAL
PAHUJA
PAHUJA Date: 2018.07.09
14:33:12 +0530
ANNOUNCED IN THE OPEN (VISHAL PAHUJA)
COURT ON 09.07.2018 MM-04 (WEST)/DELHI
Containing 10 pages all signed by the presiding officer.
Digitally signed by VISHAL VISHAL PAHUJA
PAHUJA Date: 2018.07.09
14:33:20 +0530
(VISHAL PAHUJA)
MM-04 (WEST)/DELHI
FIR No. 226/15, PS Moti Nagar Page 10/10