Delhi District Court
State vs . Samar on 30 January, 2023
IN THE COURT OF SHRI RAVINDRA KUMAR PANDEY,
ADDITIONAL SESSIONS JUDGE:07,
SHAHDARA DISTRICT
KARKARDOOMA COURTS, DELHI
STATE Vs. SAMAR
FIR No. 330 /2018
PS: Vivek Vihar
U/S: 392/397/411/34 IPC
30.01.2023
ID No. : 532/2018
CNR No. DLSH01-007105-2018
Date of commission of offence : 02.07.2018
Date of institution of the case : 04.10.2018
Name of the complainant : Sh. Manish Kumar S/o
Sh. Gaje Singh
Name of accused and addresse : Samar S/o Mohd. Umar
R/o: Umar Garden
Colony, Shyam Nagar
Road, Near Samar
Garden, Meerut, U.P.
Offence complained of : U/s 392/397/411/34 IPC
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date of judgment : 30.01.2023
JUDGMENT
1. The case of the prosecution in brief is that on 02.07.2018 at about 10.10. pm, intimation with regard to robbery of gold chain and kara (bangle) from complainant Manish Kumar S/o Sh. Gaje Singh was recorded in PS Vivek Vihar vide DD No. State Vs. Samar FIR No. 330/2018, PS Vivek Vihar page no. 1 39-A (Ex.PW6/A) and same was marked to SI Gaurav (PW6) for necessary action. Accordingly, SI Gaurav alongwith Ct. Krishan went to the place of information, where they met with the complainant Manish Kumar (PW2). SI Gaurav recorded the statement (Ex.PW2/A) of complainant Manish Kumar, wherein he complained that "on 02.07.2018 at about 10.10 pm, when he stepped down from his car XUV 500 bearing registration no. DL7CT 6557 in the front of his house bearing no. D-212, Second Floor, Vivek Vihar, Phase-I, Delhi and when he tried to enter into his house, two boys came on a pulsar motorcycle and out of those boys, one boy who was sitting as pillion rider step down from pulsar motorcycle and put one weapon on his waist and asked him to hand over the gold chain and upon his resistance, that boy fired with the pistol. It is averred in the complaint Ex. PW2/A that complainant got frightened and in the meantime that boy snatched his gold chain and he also asked him to hand over the kara (bangle) to which complainant opposed. It is averred further in the complaint that the another boy asked to fire bullet upon the complainant and the complainant handed over his bangle to that boy under the fear. It is averred further in the complaint that the boy who snatched his gold chain and took his bangle again fired bullet in the air while sitting on his motorcycle and both the boys flee away towards Ramprastha Red Light on their motorcycle. Complainant also averred that he can identify the boy who snatched his gold chain and took his bangle (kara)".
2. On the basis of the statement of complainant Ex. PW2/A, FIR bearing no. 330/2018 PS Vivek Vihar U/s 392/397/34 IPC and Section 25/27 of the Arms Act was State Vs. Samar FIR No. 330/2018, PS Vivek Vihar page no. 2 registered through Ct. Sanjeev and investigation of the case was assigned to SI Gaurav. During the investigation, IO prepared rough site plan of the place of occurrence at the instance of complainant and recorded statements U/s 161 Cr.P.C. of the relevant witnesses. After completion of investigation, charge- sheet was filed before the Court.
3. After compliance of Section 207 Cr.P.C, the case committed to the Court of Sessions and was assigned to this Court.
4. After hearing arguments on the point of charge, the accused was charged in respect of offences punishable U/s 392/397/34 IPC and Section 411 IPC against accused Samar S/o Mohd Umar, vide order dated 25.02.2019, to which he pleaded not guilty and claimed trial.
5. In support of its case, the prosecution has examined seven witnesses namely PW1 SI Jai Ram, PW2 Sh Manish Kumar, PW3 Ct. Lalit Yadav, PW4 Ct. Sanjeev, PW5 Ct. Krishan Kumar, PW6 SI Gaurav and PW7 Ms. Prerna Lakra, Senior Scientific Officer, Ballistic, FSL, Rohini, Delhi during the trial.
6. After the conclusion of prosecution evidence, statement of accused U/s 313 Cr.P.C was recorded, in which all the incriminating evidence which came on the record, were put to the accused. The accused denied the same and claimed that he is innocent and has been falsely implicated in the present case. However, the accused opted not to lead any evidence towards his defence.
7. I have heard Ld. Additional Public Prosecutor on behalf of State and Sh. C.S Tyagi, Ld. LAC on behalf of accused. I have also gone through the material available on record.
State Vs. Samar FIR No. 330/2018, PS Vivek Vihar page no. 3
8. 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 examined during trial. The testimonies of prosecution witnesses are detailed as under:-
PUBLIC WITNESS:
9. PW2 Sh. Manish Kumar:- He is the complainant/victim in this case. He has deposed the he was working as Assistant Executive Engineer in the CSIR and on 02.07.2018 at about 9.30-10.00 pm, when he was returning after purchasing food for his children from Urban Punjab Restaurant, Jhilmil Colony towards his house bearing no. D-212, 2 nd Floor, Phase-I, Vivek Vihar, Delhi and when he alighted from his vehicle no. XUV-500, DL7CT-6557 and proceeded towards his house, two boys came on a bike, out of which the pillion rider came near him and put the pistol on his chest and asked him to give his gold chain which he was wearing and Kara (bangle). He further deposed that when he opposed the said persons who were on motorcycle, the person who was sitting on motorcycle asked the other boy to fire upon him, upon which he fired a bullet due to which PW2 became frightened and thereupon, he gave them his gold wearing chain and kara (bangle). He further deposed that thereafter, both the said boys started leaving and they again fired a bullet. PW2 deposed that he made a call at 100 number and police recorded his statement Ex. PW2/A. He deposed that local police also came there and police seized two empty fired cartridges from the spot. PW2 deposed that he also pointed out State Vs. Samar FIR No. 330/2018, PS Vivek Vihar page no. 4 the place of incident to the police and later on PW2 also participated in the TIP proceedings regarding identification of the part of his robbed chain. He further deposed that PW2 identified the case property i.e. broken piece of gold chain as Ex. P1 and he also identified the part of robbed gold chain as Ex. PW2/B. During cross examination made on behalf of State by Ld. Additional PP for the State, he deposed that he went to the Police Station 2-3 times to know about the progress of his case. Witness denied the suggestion that he identified the accused on 11.08.2018 in the police station as the person who robbed him by using pistol and he came to know the name of accused as Samar. Witness did not identified the accused Samar as the same person who robbed him while using country made pistol. Witness denied the suggestion that he had been won over by the accused or that he deliberately not identiffied the accused. Witness denied the suggestion that he falsely deposed on the point of identification of the accused Samar.
During the cross examination made on behalf of the accused, he deposed that he purchased the ready-made gold chain which was robbed from him. He further deposed that the similar gold chain are easily available in the market. Witness denied the suggestion that the part of the broken chain was not belonging to him and he identified the same at the instance of police. POLICE WITNESSES:
10. PW1 SI Jai Ram:- He deposed that in the intervening night of 02-03/07/2018, he was posted at PS Vivek Vihar and was working as Duty Officer from 12.00 midnight to 8.00 am. He further deposed that on that day Ct. Krishan (PW5) brought a rukka before him for registration of FIR at about 01.05 State Vs. Samar FIR No. 330/2018, PS Vivek Vihar page no. 5 am which was prepared and sent by PW6 SI Gaurav and on the basis of the rukka, PW1 registered case FIR No. 330/18, Ex.
PW1/A. He deposed that he also made endorsement on rukka Ex. PW1/B and after registration of FIR, copy of FIR and original ruka were handed over to PW5 Ct. Krishan Kumar for handing over the same to the IO/SI Gaurav. PW1 deposed that he also issued Certificate U/s 65-B of the Indian Evidence Act Ex. PW1/C. The said witness has not been cross examined by accused despite the opportunity.
11. PW3 Ct. Lalit Yadav:- He deposed that on 10.08.2018, he was posted at PS Vivek Vihar and on that day, he joined the investigation of the present case along with PW6 SI Gaurav and accused Samar disclosed that he can get recover the piece of robbed gold chain from his village at UP. He further deposed that thereafter, accused Samar led deponent and PW6 SI Gaurav to a dairy at village Pasonda and from the wall situated near the dairy, he got recovered one piece of gold chain wrapped in the polythene. He further deposed that IO SI Gaurav (PW6) measured the said recovered piece of robbed gold chain and thereafter, he put the same into a polythene and with the seal of GK and took the same in the police possession and seized the same and prepared seizure memo Ex.PW3/A. Witness PW3 identified the broken piece of gold chain as Ex.P-1.
During cross examination on behalf of the accused by his counsel, witness replied that some public persons were present in the dairy where accused led them. He deposed that in his presence, IO did not ask any public person to join the investigation. He further deposed that they went to the village State Vs. Samar FIR No. 330/2018, PS Vivek Vihar page no. 6 Pasonda on a private car i.e. Swift of SI Gaurav Chaudhary. He deposed that SI Gaurav Chaudhary was driving the vehicle. He further deposed that similar type of chains are easily available in the market. Witness denied the suggestion that he did not join the investigation at any point of time or he deposed falsely.
12. PW4 Ct. Sanjeev:- He deposed that he was posted at PS Vivek Vihar and on that day he joined the investigation of present case and at about 05:00 pm, he along with PW6 SI Gaurav Chaudhary went in the search of the accused at Jwala Nagar where one secret informer met to IO/SI Gaurav Chaudhary and informed that one of the person involved in the incident of snatching on 02.07.2018, would come at Jwala Nagar, near Peer Mazar. He further deposed that IO PW6 Gaurav Chaudhary confirmed the secret information and thereafter he requested 4-5 public persons to join the investigation but none agreed and thereafter, PW6 along with secret informer reached at Peer Mazar, near Jwala Nagar and at the instance of secret informer, IO/PW6 had apprehended the accused Samar. He further deposed that PW4 Ct. Sanjeev alongwith PW6 IO/SI Gaurav Chaudhary interrogated the accused and during investigation accused was arrested and arrest memo Ex.PW4/A was prepared. PW4 deposed that the personal search of the accused was conducted and memo Ex.PW4/B was prepared. He further deposed that accused led PW4 Ct. Sanjeev and PW6 SI Gaurav to the place of incident and at the instance of the accused, pointing out memo Ex.PW4/D was prepared. Witness identified the accused during his examination in the Court.
During cross examination on behalf of the accused, witness replied that IO did not note down the names and State Vs. Samar FIR No. 330/2018, PS Vivek Vihar page no. 7 addresses of public persons who refused to join the investigation. Witness denied the suggestion that he did not join the investigation with the IO or he deposed falsely at the instance of the IO.
13. PW-5 Ct. Krishan Kumar:- He deposed that on 02.07.2018, he was posted as constable at PS Vivek Vihar and on that day, he was on emergency duty with PW6 SI Gaurav Chaudhary from 08:00 pm to 08:00 am and on receiving DD No. 39-A at about 10:30-10:45 pm, he alongwith PW6 SI Gaurav Chaudhary went to the spot i.e. D-212, Vivek Vihar, Delhi, where PW2 i.e. complainant Manish Kumar met PW5 and PW6 and PW2 told them that one boy robbed his gold wearing chain and kara (bangle) after using pistol. He further deposed that PW6 SI Gaurav Chaudhary recorded statement of PW2 i.e. complainant and called crime team at the spot. He further deposed IO PW6 SI Gaurav Chaudhary recovered two empty cartridges from the spot which he searched with the help of torch of mobile phone. He deposed that IO/SI Gaurav Chaudhary prepared sketch of recovered empty cartridges as Ex.PW5/A. He further deposed that thereafter, PW6 IO/SI Gaurav Chaudhary put both the recovered empty cartridges in plastic container and sealed the same with the seal of GK and took the same into possession and prepared seizure memo Ex.PW5/B. He deposed that IO PW6 also prepared two site plan, one of the place recovery of empty cartridges and another place of incident and same are Ex. PW5/C and PW5/D respectively. He deposed that IO PW6 prepared tehrir and send him to get the case FIR registered and at about 01:00 am, deponent/PW5 went to PS alongwith original tehrir and after getting the case FIR registered, he returned back at the State Vs. Samar FIR No. 330/2018, PS Vivek Vihar page no. 8 spot with copy of FIR and original tehrir and handed over the same to IO/SI Gaurav. PW5 further deposed that they tried to search the accused but they could not succeeded and they returned to the police station. He further deposed that IO deposited the case property with MHC(M). He deposed that IO recorded his statement.
During cross examination, he replied that departure entry was made by the IO when they left the police station. He further deposed that he do not know the DD number of the said departure entry. He deposed that they reached at the spot between 10.30 pm to 10.45 pm. He further deposed that complainant met them at the spot and his family members were also present there. He deposed that the place of incident is a busy road but during night hours there were very few vehicles passing from the road. He deposed that there were so many residential flats near the spot. He further deposed that IO requested neighbours to join the investigation but they refused. He deposed that he do not know the whether their names and addresses were recorded by the IO. He further deposed that he do not know whether IO gave notice to those neighbours who refused to join the investigation. He deposed that he had also observed CCTV footage in the vicinity where the incident took place. He deposed that one CCTV camera was also installed near police booth at Ramprasth Crossing Red light. He deposed that he do not know whether IO recorded statement of any public person or not, whose CCTV cameras were checked by the IO. He deposed that Crime team came after about half an hour at the spot and there were 5-6 police officials in the crime team. He deposed that he cannot tell the name of Incharge Crime Team. He State Vs. Samar FIR No. 330/2018, PS Vivek Vihar page no. 9 further deposed that empty cartridges were lying at a distance of about 10 paces from the spot. He deposed that IO prepared site plan of the place of incident at the instance of complainant. He deposed that he do not remember who else put his signature on site plan except him. He deposed that he do not remember whether IO recorded statement of any other witness except complainant at the spot. He deposed that he put his signatures on memos. He further deposed that IO deposited the seal after use with MHC(M). Witness denied the suggestion that he did not join the investigation or he deposed falsely at the instance of IO.
14. PW-6 SI Gaurav:- He deposed that on 02.07.2018, he was posted as SI at PS Vivek Vihar and on that day he was on emergency duty and his duty hours were from 8.00 pm to 8.00 am. He deposed that DD No. 39-A was marked to him regarding robbery of gold chain and gold kada (bangle) of a caller by two robbers and regarding the firing in front of H.no. D-212, Second Floor, Vivek Vihar, Phase-1, Delhi, the said DD is Ex. PW6/A. He further deposed that he alongwith PW5/ Ct. Krishan Kumar went to the spot i.e. in front of H.no. D-212, Second Floor, Vivek Vihar, Phase-1, Delhi, where deponent/PW6 met with PW2/ complainant Manish Kumar. He deposed that he recorded the statement of complainant as Ex. PW2/A. He deposed that he also called the Crime Team at the spot and also inspected the spot and found two empty cartridges lying on the road/ground on which KF 7.65 was engraved and he prepared sketch memo Ex. PW5/A and both the empty cartridges were kept in one plastic container and the same was sealed with the seal of GK. He further deposed that a pullanda of seized articles was prepared and same was seized and seizure memo Ex. PW5/B was State Vs. Samar FIR No. 330/2018, PS Vivek Vihar page no. 10 prepared. He deposed that thereafter, he prepared a tehrir on the complaint of PW2 Manish Kumar as Ex. PW6/B and handed over the same to Ct. Krishan Kumar for registration of FIR and Ct. Krishan Kumar went to PS and got the FIR registered and he returned back to the spot and handed over the copy of FIR and original rukka to PW6 SI Gaurav. He deposed that he prepared the site plan at the instance of PW2/complainant Ex. PW5/D. He further deposed that he searched the CCTV footage in the nearby area and enquired from the local people about the incident but nothing could be found at that time. He further deposed that he alongwith PW5/ Ct. Krishan returned back to Police Station. He deposed that he deposited the case property in Malkhana and he recorded the statement of witnesses.
He further deposed that on 05.08.2018, he received an information from the secret informer about the presence of accused Samar at the Mazar of Peer Baba near Jwala Nagar Railway Track who was allegedly involved in the present case. He deposed that he alongwith PW5 Ct. Sanjeev went near Jawala Nagar Railway Track where they met the secret informer and the Secret informer pointed out towards one person who was standing on the side of railway track and disclosed his name as Samar. He deposed that thereafter, the secret informer left that place. He further deposed that he alongwith PW5 Ct. Sanjeev apprehended the accused Samar and accused Samar was interrogated by him. He further deposed that thereafter, accused was arrested and his personal search was conducted and memos were prepared as Ex. PW4/A & PW4/B respectively. He deposed that thereafter, PW5 Ct. Sanjeev Kumar and deponent returned to the police station alongwith accused Samar. He further deposed State Vs. Samar FIR No. 330/2018, PS Vivek Vihar page no. 11 that accused Samar led PW5 Ct. Sanjeev and deponent to the spot i.e. in front of D-212, Second Floor, Vivek Vihar, Phase 1, Delhi where accused Samar along with his associate had committed robbery of jewellery by firing and the pointing out memo Ex. PW4/D was prepared at his instance. He further deposed that he also prepared the site plan of the spot at the instance of accused as Ex. PW5/D. He deposed that on 06.08.2018, he produced the accused before the Court in muffled face and also moved an application Ex. PW-6/C for TIP and thereafter, proceeding of TIP was marked to the Court of Ld. MM and on the same day, accused was produced before the court of Ld. MM and on being asked by the said court, the accused refused to participate in the TIP Proceedings and accordingly, accused was sent to judicial custody.
He further deposed that on 07.08.2018, he moved an application before the court of Ld. CMM with the request to issue production warrant of the accused and accused was produced on 08.08.2018 and on his application, three days police custody remand of accused was granted. He further deposed that he interrogated the accused and got recorded his disclosure statement and during the police custody remand, accused Samar led them near the wall of buffalo dairy village Pasaunda, Ghaziabad and got recovered one transparent polythene kept in the cavity/hole (surakh) from the said wall and on checking the above said transparent polythene, it was found containing part of robbed golden chain approximately 17 ½ cm weighing around 3 gms. He deposed that the above said part of golden chain was kept in transparent plastic box which was sealed with the seal of GK. He deposed that the above said box Ex. PW3/A was seized State Vs. Samar FIR No. 330/2018, PS Vivek Vihar page no. 12 by him. He deposed that thereafter, accused Samar led them to Meerut in search of co-accused Shahdab. He deposed that he and PW5 searched for accused Shahdab at auto stand and other areas where they used to meet and plan but their efforts went in vain. He deposed that on 11.08.2018, PW1/complainant Manish Kumar came to PS at about 10.00 am and complainant identified the accused Samar as one of the robber who was involved in commission of robbery with him on 02.07.2018. He deposed that accused was produced before the court and he was remanded into judicial custody. He deposed that on the same day, he moved an application Ex. PW6/G for TIP of the recovered case property before Ld. CMM. He further deposed that the TIP proceedings were marked to Ld. MM and on 18.08.2018 date was fixed for TIP of the recovered case property. He further deposed that on 18.08.2018, he was not available in PS that is why the matter was marked to SI Avesh Kumar for necessary action. He further deposed that SI Avesh Kumar who got conducted TIP proceedings of recovered case property which was successful through PW1 complainant Manish Kumar. He deposed that TIP of case property as Ex. PX is already admitted by accused. He deposed that after completion of investigation, he filed the charge sheet before the Court of Ld. CMM.
During the cross examination, witness denied the suggestions that he never visited to the spot with Ct. Krishan Kumar nor met with complainant Manish Kumar and prepared the complaint in the police station. Witness further denied the suggestion that no empty cartridges were recovered from the spot or he prepared the sketch memo in the police station. Witness denied the suggestion that no golden chain or its part was State Vs. Samar FIR No. 330/2018, PS Vivek Vihar page no. 13 recovered at the instance of the accused which was belonging to the complainant. Witness denied the suggestion that the part of the golden chain was planted upon the accused.
15. PW-7 Ms. Prerna Lakra ( FSL Expert) :- She deposed that she worked as Sr. Scientific officer, Ballistic, FSL, Rohini on 10.10.2018 and was posted at FSL Rohini and on that day, one sealed parcel was received from SHO Vivek Vihar in FIR No.330/18 through Ct. Sarvender containing the exhibits duly sealed with the seal of GK. She further deposed that she opened the parcel and found that it was containing two 7.65 mm cartridge cases which were marked as EC1 and EC2. She further deposed that she examined the above said EC1 and EC2 and found the firing pin marks and breech face marks present on EC1 and EC2 and on the basis of the same, she opined that the EC1 and EC2 are fired empty cartridge cases under the definition of ammunition as defined in the Arms Act and exhibits/remnants of ammunition were sent to laboratory for examination have been sealed with the seal of FSL DELHI. The detailed report is Ex. PW7-A.
16. The said witness was not cross examined by accused despite opportunity.
ARGUMENTS ADVANCED AND CASE LAW CITED ARGUMENTS ON BEHALF OF THE STATE THROUGH LD. ADDITIONAL PUBLIC PROSECUTOR FOR THE STATE
17. It is submitted on behalf of the State that prosecution has duly proved its case regarding commission of offence punishable U/s 392/394/34 IPC and allegation of offence State Vs. Samar FIR No. 330/2018, PS Vivek Vihar page no. 14 punishable U/s 411 IPC beyond all reasonable doubt. It is further submitted that the part of the case property i.e. the broken gold chain belonging to the complainant was recovered from the possession of the accused and from his instance. It is further submitted that the said recovered gold chain was identified by the complainant during its TIP and during examination of the witness PW2. It is further submitted that the gold chain of the complainant and bangle (kara) were robbed from the possession of the complainant at gun point and complainant deposed regarding the mode and manner of incident during his examination in the Court. It is further submitted that the case of prosecution is duly proved and accused is liable to be convicted for offence punishable U/s 392/34 IPC read with Section 397 IPC and offence punishable U/s 411 IPC for which accused was charged.
ARGUMENTS ON BEHALF OF THE ACCUSED/DEFENCE THROUGH LD. LEGAL AID COUNSEL SH. C.S TYAGI
18. As per written submission filed on behalf of the accused that accused was not identified by the complainant as the same person who committed offence against him. It is further averred that the alleged recovery from the possession of accused was planted one and accused was falsely implicated in the present case. It is further averred that at the time of alleged recovery at the instance of the accused, no public witness was associated which creates doubt regarding the story of prosecution that part of the gold chain was recovered from the possession of the accused. It is further averred that the case of prosecution is not proved beyond reasonable doubt, so accused may be State Vs. Samar FIR No. 330/2018, PS Vivek Vihar page no. 15 acquitted from the present case. Ld. Counsel for accused has relied upon the case titled as " Sujit Bishwas Vs. State of Assam" (2013) 12 SCC, 406, Govt of NCT Delhi Vs. Sudhir Kumar @ Bunty, 2016 (3), JCC, 1480, Mangu Vs. Dharmendra & Ors. 2016 (2), JCC, 821, in support of his arguments and submitted that the case of prosecution is not proved beyond reasonable doubt and accused is entitled for benefit of doubt, so accused may be acquitted from the present case. It is submitted by Ld. LAC for accused that complainant had not identified the accused during his examination in the Court as PW2. It is further submitted that the broken part of the alleged recovered chain was planted upon the accused and the same was falsely recovered from the possession of the accused. It is further submitted that neither the police nor the complainant produced and proved any document regarding the ownership of the alleged recovered chain and no public witness was associated in the investigation at the time of recovery of alleged chain at the instance of accused. It is further submitted that the case of prosecution is not proved beyond reasonable doubt regarding charges of offence punishable U/s 392/34 read with Section 397 IPC and charge of offence punishable U/s 411 IPC hence accused is entitled for acquittal.
19. Heard the submissions of both the parties. Perused the record of chargesheet and documents as relied upon by the prosecution including the testimonies of witnesses of prosecution recorded during the trial.
THE REASON FOR DECISION
20. The case of prosecution is that on 02.07.2018 at about 10.10 pm, in the front of H.No. D-212, Vivek Vihar-I, State Vs. Samar FIR No. 330/2018, PS Vivek Vihar page no. 16 Delhi within jurisdiction of PS Vivek Vihar, accused Samar S/o Mohd Umar alongwith his associate (not chargesheeted in final report filed U/s 173 Cr.PC) had robbed the gold chain and kara (bangle) of the complainant Manish Kumar S/o Sh. Gaje Singh/PW2 while using the pistol like weapon and by firing in the air to extend threatening to the complainant at the time of commission of robbery. It is further allegation against the accused that during investigation part of the gold chain (broken part) was recovered on 13.08.2018 at the instance of the accused from the wall of dairy situated near Pasonda Main Road which was earlier robbed from the complainant and which was received or retained by the accused having reason to believe that same is a stolen property.
21. To prove the charges of offence punishable U/s 392/34 IPC read with Section 397 IPC and offence punishable U/s 411 IPC, prosecution has relied upon the testimony of complainant PW2. PW2 during his examination on 20.05.2019, had not supported the case of prosecution regarding the identity of the accused. Witness during cross examination on behalf of the State specifically deposed that accused Samar is not the same person who robbed him while using country made pistol contrary to his earlier statement in his complaint Ex. PW2/A dated 02.07.2018, wherein he stated that he can identify the accused if the same is produced before him. It is the case of prosecution that complainant/PW2 identified the accused initially in the police station on 11.08.2018 as the same person who robbed him while using pistol. Witness PW2 deposed and denied that he came to know the name of accused as Samar on 11.08.2018 in the police station. Witness also denied that he gave any such State Vs. Samar FIR No. 330/2018, PS Vivek Vihar page no. 17 statement Ex. PW2/X from point A to A to the police regarding the identification of the accused in the police station. The Court is of the considered view that allegation of the charge punishable U/s 392/34 IPC read with Section 397 IPC is not proved against the accused.
22. So far as the recovery of broken part of the chain at the instance of the accused is concerned, the prosecution has relied upon the testimony of two recovery witnesses namely Ct. Lalit Yadav/PW3 and IO SI Gaurav/PW6. During the cross examination of PW3, it came on the record that some public persons were present at the place of alleged recovery of the broken chain. However, IO did not asked them to join the investigation and no public witness was associated during the search, seizure and recovery of the broken chain at the instance of the accused. During the examination of witness PW6/ IO, no explanation offered on behalf of the State regarding the fact of not associating public witnesses at the time of recovery of broken chain at the instance of accused despite the availability of public witnesses. The Court is of the considered view that allegation of charge of offence punishable U/s 411 IPC is not proved beyond reasonable doubt.
23. In view of the above discussion, accused Samar S/o Mohd Umar is acquitted from the present case and from the charges of offence punishable U/s 392/34 IPC read with Section 397 IPC and charge of offence punishable U/s 411 IPC. Accused Samar (on bail in this case) be released from jail if not required in any other case.
24. Bail bond/ Surety bond for sum Rs. 25,000/- each in State Vs. Samar FIR No. 330/2018, PS Vivek Vihar page no. 18 terms of Section 437-A Cr.PC furnished and accepted. Copy of the judgment be given free of cost to the accused.
25. File be consigned to Record Room after due compliance.
Announced in the open Court, On 30th January, 2023. (Ravindra Kumar Pandey) ASJ:07/Shahdara/KKD Courts/Delhi.
30.01.2023 State Vs. Samar FIR No. 330/2018, PS Vivek Vihar page no. 19