Delhi District Court
State vs ) Ramesh @ Monu @ Banda on 26 September, 2013
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 60/1
Unique Identification No. 02404R0180652011
State
Versus
1) Ramesh @ Monu @ Banda
S/o late Sh. Champat Ram
R/o B138, Mangol Puri,
Delhi.
FIR No. 176/11
PS - Mangol Puri
U/s. 392/397/411 IPC
Date of institution of the case: 13/07/2011
Arguments heard on: 26/09/2013
Date of Decision: 26/09/2013
JUDGMENT
This case was registered on the statement of one Kishore Kumar U/s. 392 of IPC, on 09/05/2011.
During investigation, rough site plan of the place of occurrence was prepared. DD No. 41A dated 11/05/2011 was recorded at PS Mangol Puri, at about 10.15 p.m. night, on receipt of telephonic information from complainant Kishore Kumar to the effect that the boy, who had committed crime with him and had snatched his money on 05/05/2011 and regarding which he had got registered a case in PS Mangolpuri, is roaming near Hundai Showroom, Industrial Area, PhaseI, Mangolpuri. This information was given to SHO, who directed that same be communicated to SI Rahul for taking necessary action.
SC No. 60/1 1/11
Accordingly, on 11/05/2011 accused Ramesh @ Monu @ Banda was arrested in this case U/s. 392/397 of IPC. His personal search was conducted. During his formal search, one mobile phone make LGT300 was recovered from the possession of accused, which was seized by preparing a memo. He also made disclosure statement. Thereafter, accused also pointed out the place of occurrence. He also got recovered another mobile phone make Samsung, which was also seized by preparing a memo. Accused Ramesh @ Monu had also got recovered five other mobile phones, which were seized by preparing a memo. Accused was also got medically examined. In pursuant to recoveries from accused Ramesh @ Monu, after discussion with senior officers, Section 397 of IPC was added.
During investigation, two bills pertaining to Samsung mobile and LG mobile were also collected , which were seized by preparing a memo. Finger prints and footprints of accused Ramesh @ Sonu were also taken.
On completion of investigation, chargesheet was filed against the accused U/s. 392/397/411 of IPC. Case was committed to the Court of Session on 24/08/2011 and was received on 02/09/2011. On 20/09/2011, charge was framed U/s. 392/34 IPC, U/s. 397 of IPC and U/s. 411 IPC against the accused, to which, he pleaded not guilty and claimed trial. On 22/12/2011, it was found that another mobile phone recovered at the instance of accused was not mentioned in the charge nor date of recovery of two mobile phones were mentioned and thirdly, Section 34 of IPC was not applicable because accused was alone at the time of committing offence. Accordingly, amended charge u/s. 392/397/411 of IPC was framed against the accused, to which, he pleaded not guilty and claimed trial.
To prove its case, prosecution has examined PW1 to PW10 in all. On completion of evidence of prosecution, statement of accused was recorded U/s. 313 of Cr.P.C., wherein he has denied the allegations and has claimed that he is innocent and has been falsely implicated in this case.
I have heard learned APP for the State, learned defence counsel for the SC No. 60/1 2/11 accused persons and have gone through the material placed on record with evidence adduced.
Complainant Kishore Kumar has been examined as PW3. He has stated that he is working in a factory of manufacturing of ladies chappal at Madipur. On 06/05/2011, he was going back to home from his work and at about 11.30 p.m., when he reached near F block, Masjidwala park, one boy came in very fast speed from his behind and hit him towards right, at which, he asked him to go properly, on which, that boy caught hold collar of his shirt from left side and pointed out a knife towards his left side waist and snatched his two mobile phones make LG T 300 of red and black colour and Tata Samsung mobile of black and blue colour, which were having no. 9990137878 and 9289092194 respectively. Thereafter, that boy pushed him by threatening not to disclose about this fact to anyone and fled away from there. He got scared due to the incident and as such he went to his house and did not disclose this fact to anyone nor called the police at 100 number at that time.
PW3 has further deposed that he lodged a complaint with the police on 09/05/2011 and his statement Ex. PW3/A was recorded. He had stated to the police in his statement that he can identify the person, who was resident of the same area, if shown to him. PW3 has stated that said person was not present in the court. Police has obtained his signatures on 4/5 blank papers in the PS. His mobile phone of LGT 300 was shown to him by the police vide memo Ex. PW2/E and he signed the same.
As PW3 has not supported the case of the prosecution in any manner, hence, he has been cross examined by learned APP, but even then, he has not supported the case of the prosecution in any manner regarding identity of the accused as the same, who had snatched his mobile phones make LG T 300 and Tata Samsung on the point of knife. PW3 has identified his signatures on site plan Ex. PW3/B, arrest memo of accused Ex. PW2/A, seizure memo Ex. PW2/E, disclosure statement of accused Ex. PW2/C and pointing out memo Ex. PW2/D, but has stated that his signatures were obtained by the police on blank papers. PW3 has identified mobile SC No. 60/1 3/11 phone make LGT 300 of black and red colour before the court as Ex. P1. In the cross examination, he has stated that mobile phone Ex. P1 was shown to him in the PS on 09/05/2011.
PW10 is SI Rahul Kumar. He has stated that on 09/05/2011, he was posted as SI at PS Mangol Puri. On that day, when he was present in the PS, complainant PW3 Kishore Kumar came to him and got recorded his statement regarding the robbery of his two mobile phones, which is Ex. PW3/A. On his statement, he made rukka Ex. PW10/A and gave the same to duty officer for registration of the case u/s. 392 of IPC.
PW1 HC Dharamveer Singh was posted as duty officer on 09/05/2011 at PS Mangol Puri from 5.00 p.m. to 1 a.m. night. He has proved the copy of FIR as Ex. PW1/A, which he got recorded on receipt of rukka from SI Rahul i.e. PW10 through computer operator. He has also proved his endorsement on the rukka as Ex. PW1/B. PW10 SI Rahul has further deposed that thereafter, he alongwith PW3 complainant Kishore Kumar left the PS and reached at the spot i.e. F block near park of Masjid. After sometime, Constable Manoj came at the spot and he handed over copy of FIR alongwith original rukka to him. Thereafter, he prepared rough site plan of the place of occurrence at the instance of Kishore Kumar, which is Ex. PW3/B. After that, he made inquiries from the neighbouring people to find out the accused and the case property, but the same could not be found. He recorded supplementary statement of complainant Kishore Kumar and thereafter, he was relieved. After that, he alongwith Ct Manoj came back to PS. PW10 has further deposed that, after discussing the matter with the SHO, Section 397 of IPC was added. In his supplementary statement, complainant Kishore Kumar disclosed that both the robbed mobile phones were gifted to him by his friend Vikas, hence, he reached at the house of Vikas in Mangolpuri and made inquiries from him, who produced two bills of the mobile phones, which are Ex. PW5/A and SC No. 60/1 4/11 Ex. PW5/B and were seized vide memo Ex. PW6/A. PW10 SI Rahul has further deposed that on 11/05/2011, when he was present in the PS, duty officer HC Chander Bhan handed over to him copy of DD No. 41A. On receipt of the same, he alongwith PW2 Constable Bhargav reached near Hundai Showroom, Industrial Area, PhaseI, Mangolpuri, where PW3 complainant Kishore Kumar met them and on seeing a person standing in the vacant area near Hundai showroom, he pointed out towards him as the same person, who had committed robbery with him, at which, that person was immediately apprehended by them. On inquiry, he disclosed his name as Ramesh @ Monu @ Banda. He conducted his personal search, during which, one LG 300 mobile phone of black and red colour was recovered from the right side pocket of his pant. Accused Ramesh @ Monu was arrested vide memo Ex. PW2/A. His personal search was conducted vide memo Ex. PW2/B. He also made disclosure statement Ex. PW2/C. LG 300 mobile was seized vide memo Ex. PW2/E. He recorded another supplementary statement of PW3 complainant Kishore Kumar in this respect and he was relieved.
PW10 has further deposed that thereafter, he took accused Ramesh to SGM hospital for his medical examination and after that, they came back to PS, where accused was put in lockup and case property was deposited in the malkhana.
PW10 has further deposed that on the next day, he alongwith PW9 Constable Biresh produced the accused before the Court of concerned MM and moved application for one day PC remand of accused, which was granted. His application is Ex. PW10/B. Thereafter, they came back to PS. From the PS, accused Ramesh took them to his house at B138, Mangolpuri and got recovered six mobile phones, which were kept in a almirah, out of which, one mobile phone make Samsung of TATA Indicom of blue and black colour was belonging to complainant. The said mobile phone was seized vide memo Ex. PW9/A. The remaining five mobile phones were taken into possession vide memo Ex. PW9/B. Thereafter, SC No. 60/1 5/11 accused was taken to SGM hospital, where he was got medically examined and after that they came back to PS, where accused was put in lockup and case property was deposited in the malkhana. On the next day, he was remanded to J.C. PW10 has further deposed that during investigation, he collected previous involvement of accused Ramesh @ Monu vide Ex. PW10/C. On 21/05/2011, he prepared criminal record of accused Ex. PW10/D. PW10 has further deposed that on 12/06/2011. he alongwith PW5 Constable Krishan Kumar reached at shop No. 3 and 4, pocket IV, Sector2, Rohini, where shop owner Vipul met them. He gave notice U/s. 160 of Cr.P.C. to him and joined him in the investigation. On seeing bill Ex. PW5/A, said Vipul had verified the same from his record and told that the said mobile phone was purchased by one Vikas from his shop. He recorded statement of Vipul to this effect.
PW10 has further deposed that after that, he alongwith PW5 Constable Krishan Kumar reached at Shop no. 2, Prem Nagar bus stand opposite metro pillar No. 682, where owner of the shop namely Raj Kumar met them. He was issued notice u/s. 160 of Cr.P.C. and joined in the investigation. On seeing bill Ex. PW5/B, said Raj Kumar verified the same from his record and told that the said bill was issued to one Vikas at the time of purchase of mobile phone. He recorded statement of said Raj Kumar to this effect and thereafter, they came back to PS. PW10 has further deposed that at the time of taking one day PC remand of accused Ramesh @ Monu, he also made efforts to find out accused Tinku @ rinku and the offending knife, but the same could not be found despite best efforts. After completing investigation, he prepared the challan against accused Ramesh @ Monu.
PW10 has identified the mobile phone make LG 300 of red and black colour as Ex. P1, another mobile make Samsung of TATA indicom as Ex. P2 and remaining five mobiles as Ex. P3 collectively.
PW2 Constable Bhargav has deposed the same facts as of PW10 SI Rahul regarding arrest of accused Ramesh @ Monu.
SC No. 60/1 6/11
PW4 HC Chander Bhan has proved copy of DD No. 41A as Ex. PW4/A which was recorded at about 10.15 p.m. on receipt of information through telephone from complainant PW3 Kishore Kumar that the person, who had committed the incident of snatching money on 06/05/2011 and against whom he had got registered a case, was roaming around Industrial Area Phase I, Mangol Puri, near Hyundai Showroom, and he could be arrested.
PW5 is Constable Krishan Kumar. He has deposed the same facts as of PW10 SI Rahul regarding verification of mobile phones from the shop of one Raj Kumar and one Vipul.
PW6 is Vikas Kumar. He is friend of PW3 Kishore Kumar. He has stated that on 06/05/2011, an incident took place with his friend Kishore Kumar, whose two mobile phones were snatched at the point of arm but he did not lodge any complaint to this effect. On 09/05/2011, after consultation with the family members, they went to make a complaint of the said incident at PS Mangolpuri and lodged the complaint. He had gifted the said two mobile phones to PW3 Kishore Kumar and the bills were in his name. On 10/05/2011, he handed over the bills of the mobile phones to the IO, which were seized vide memo Ex. PW6/A. He also also identified the bills as Ex. PW5/A and Ex. PW5/B. One mobile phone of make LG T300 was purchased by him from Sector2, Rohini and another mobile phone of make Samsung was purchased by him from Uttam Nagar.
PW7 Vipul Vohra has stated that he is working as store Manager in M/s. Spice Hot Spots Mobile Shop, which was situated at 3834, pocket4, Sector2, Rohini. In the month of June, 2011, police officials came at his shop and made inquiries from him in writing. The said officials showed him one mobile phone bill issued by their shop in respect of LG T300 of black colour, which as per the bill was sold to one Vikas. He has identified the bill as Ex. PW5/A. PW8 Raj Kumar has stated that he has been running a mobile shop in plot No. 2, Prem Nagar bus stand, opposite metro pillar No. 682, main Najafgarh road, SC No. 60/1 7/11 Uttam Nagar, in the name and style of Shiva care. On 12/06/2011, in the evening time, PW10 SI Rahul of PS Mangol Puri came to him and made inquiries and issued notice u/s. 160 Cr. P.C. to him. SI Rahul also shown to him one mobile phone make Samsung and also one bill. On seeing the bill, he told him that the said bill was issued by him and was of his shop. He has also recorded his statement to this effect. PW8 has also identified the bill before the court as Ex. PW5/B. PW9 Constable Biresh has deposed the same facts as of PW10 SI Rahul regarding recovery of mobile phone make Samsung alongwith other five mobile phones from the possession of accused.
Learned defence counsel has contended that PW6 Vikas Kumar has stated that on 09/05/2011, he accompanied PW3 complainant Kishore Kumar to PS Mangolpuri regarding making complaint of incident dated 06/05/2011, whereas PW3 complainant has nowhere deposed that PW6 Vikas Kumar accompanied him to PS, while he went to lodge complaint regarding the incident of 06/05/2011. Even PW10 SI Rahul has nowhere deposed that at the time, complainant Kishore Kumar came to PS, PW6Vikas Kumar was accompanying him. Learned defence counsel has further contended that PW3 Kishore Kumar has nowhere deposed that the mobile phones make LG T 300 and Tata Samsung were gifted to him by his friend PW6 Vikas Kumar, whereas PW6 Vikas Kumar has stated so. Hence, it is not certain whether the mobile phone make LG T 300 recovered from the possession of accused persons or the mobile phone make TATA Samsung and other mobiles phones, got recovered by the accused, were belonging to complainant PW3 Kishore Kumar or to PW6 Vikas Sharma. Even mobile make TATA Samsung was not shown to the witness during his examination or cross examination by learned APP. Hence, recovery of mobile phones from the possession of accused is doubtful.
According to PW3 complainant Kishore Kumar, incident of robbery had taken place on 06/05/2011. Matter has been reported on 09/05/2011. He has not identified the accused before the Court as the same, who had committed robbery of SC No. 60/1 8/11 two mobile phones. Even before the Court, he has identified one mobile phone i.e. LG T300 and second mobile phone of Samsung TATA Indicom was neither produced nor shown to him for identification.
According to the case of the prosecution, accused was apprehended in this case on 11/05/2011 on the pointing of complainant and at that time, one mobile phone LG T 300 was recovered from his possession, whereas PW3 complainant Kishore Kumar has stated that mobile phone Ex. P1 i.e. LG T 300 was shown to him by the police in the PS on 09/05/2011. So, prosecution has not been able to prove the recovery of mobile phone LG T 300 from the possession of accused on 11/05/2011. Even PW3 complainant Kishore Kumar has not supported the case of the prosecution that this mobile phone was recovered from the possession of accused in his presence.
According to the case of the prosecution, another mobile phone Samsung TATA Indicom was got recovered by the accused from his house on 12/05/2011 during police custody. PW10 SI Rahul Kumar was investigating the matter with PW9 Constable Biresh. According to cross of PW10 SI Rahul Kumar, sister of accused was present in the house, but she is not a witness to the seizure memo of this mobile phone. They reached at the house of accused at about 45.00 p.m., whereas according to PW9 constable Biresh, when they reached at the house of accused, his wife and sister were present. So, it is not explained as to why the signatures of the persons present in the house of accused were not obtained in the seizure memo of the mobile phone.
This mobile phone make Samsung TATA Indicom was having IMEI No. A0000023327816. According to PW6 Vikas Kumar, he had gifted this mobile phone to the complainant and he had also produced the bill of the same before the IO, wheres IO has stated that he seized the bill, while visiting the house of PW6 Vikas. According to bill of this mobile phone Ex. PW5/B, no such number has been mentioned in the bill. Neither during the examination of PW3 complainant Kishore Kumar nor during the examination of PW6 Vikas Kumar, this mobile phone was SC No. 60/1 9/11 shown to the witnesses for identification as the same. PW8 Raj Kumar has also deposed that this Samsung TATA Indicom mobile phone was sold by him and has identified the mobile phone before the Court as Ex. P2. In the bill, name of Vikas has been mentioned, so, it is proved that this Samsung TATA Indicom mobile phone was sold to PW6 Vikas, who further gifted the same to complainant PW3 Kishore Kumar, but PW3 complainant Kishore Kumar has not stated so that this phone was gifted to him by PW6 Vikas. Neither PW3 Kishore Kumar nor PW6 Vikas Kumar has identified this mobile phone before the Court as the same, which was robbed by the accused. PW9 Constable Biresh and PW10 SI Rahul Kumar are only witnesses to the recovery of this mobile phone from the house of accused and thereafter, no TIP of this mobile phone was got conducted. In the complaint, PW3 complainant Kishore Kumar has given the mobile numbers only and no IMEI number was given. According to FIR, number of TATA Indicom mobile phone was 9289092194, colour blue and black. Nothing has been brought on record that this mobile phone number 9289092194 was issued to the complainant or he was using the same or that this mobile number was used on Tata Indicom Samsung mobile phone, having IMEI number A0000023327816. So, mere recovery of this mobile phone itself does not prove that it was belonging to the complainant. The contradictions appearing in the depositions of the witnesses are material and rendering them unbelievable. Prosecution has not been able to prove that recovered mobile phone Samsung TATA Indicom was the same, which was robbed from the complainant and further, there is no identification of mobile phone by the complainant either in the investigation or before the court.
In view of above, in absence of identity of the accused and also recovery/identity of mobile phones before the Court, witnesses cannot be relied upon in any manner as they are not inspiring any confidence and prosecution has failed to connect the accused with the robbery and with the recovery of mobile phones as robbed articles.
SC No. 60/1 10/11
In view of above, prosecution has not been able to prove offences U/s. 392 read with Section 397 of IPC and u/s. 411 of IPC beyond reasonable doubts. Accordingly, accused is acquitted for the same.
Announced in the open court (Virender Kumar Goyal)
today on 26th of September, 2013 Additional Sessions Judge
Fast Track Court, Rohini Courts,Delhi.
SC No. 60/1 11/11