Delhi District Court
State vs . Deepak And Ors on 20 November, 2018
IN THE COURT OF MS ANJANI MAHAJAN METROPOLITAN
MAGISTRATE02 (SOUTH DISTRICT), SAKET COURTS COMPLEX,
NEW DELHI
STATE Vs. DEEPAK AND ORS
FIR No. 292/15
U/s : 394/411/427/34 IPC
P.S. : Malviya Nagar
Date of Institution : 25.04.2016
Date on which case reserved for Judgment : 15.11.2018
Date of judgment : 20.11.2018
JUDGMENT
1.FIR No. of the case : 292/15
2.Date of the Commission : 17.12.2015
of the offence
3.Name of the accused : 1. Deepak,
: S/o Sh. Mawashi Ram,
: R/o H. No. S 82/178,
: Jagdamba Camp,
: Malviya Nagar, New Delhi.
: 2. Himanshu Dass,
: S/o Sh. Harish Chander Dass,
: R/o H. No. J3/78, Top Floor,
: Khirki Extension,
: Malviya Nagar, New Delhi
: 3. Sushant,
: S/o Sh. Sapan Adhikari
: R/o H. No. 169, Jagdmba Camp,
: Malviya Nagar, New Delhi.
4.Name of the complainant : Sh. Yash @ Sumit Pal
: S/o Sh. Kailash Chand Pal,
: R/o H. No. 350, Gali No.12,
: H Block, Ratiya Marg,
: Sangam Vihar, New Delhi.
5.Offence complained of : U/s 394/411/427/34 IPC
FIR No. 292/15 State Vs. Deepak & Ors. 1/10
6.Plea of accused : Pleaded not guilty
7.Final order : All accused persons acquitted for the
: offences alleged.
BRIEF FACTS:
1. Briefly stated the case of the prosecution is that on 17.12.2015 between 08:30 am 09:00 am in front of APJ School, Gate No.2, Sheikh Sarai, PhaseI, PS Malviya Nagar, all the accused persons in furtherance of their common intention voluntarily caused hurt to the complainant Sh. Yash @ Sumit Pal and snatched his mobile phone and also caused damage to his car i.e. Innova bearing no. DL1VB6712 by hitting on the same with sticks and thus committed the offences punishable U/s 394/427/34 IPC.
2. FIR No. 292/15 was registered at police station Malviya Nagar on the basis of aforesaid allegations.
3. After completion of investigation charge sheet under sections 394/411/427/34IPC was filed before the court on 25.04.2016.
4. On the basis of prima facie material available on the record charge for the offences punishable under section 394/427/34 IPC was framed against the accused persons Deepak, Himanshu Dass and Sushant to which the accused persons pleaded not guilty and claimed trial on 21.07.2016.
THE TRIAL PROCEEDINGS:
5. In order to establish its case, the prosecution has examined twelve witnesses.
a) PW1 was the complainant/registered owner of the Innova Car bearing FIR No. 292/15 State Vs. Deepak & Ors. 2/10 No. DL1VB6712 namely Smt. Radha Sahi. She exhibited the indemnity bond as Ex. PW1/A and eight photographs of the Innova car as Ex. P1 (colly).
b) PW2 was the Motor Vehicle Inspector Sh. T.U. Siddiqui. He exhibited his report as Ex. PW2/A.
c) PW3 was the registered owner of the motorcycle bearing no. DL6S AB3209 namely Smt. Deepali Adhikari. She exhibited the indemnity bond as Ex. PW3/A and four photographs of the motorcycle as Ex. P2 (colly).
d) PW4 was the driver of the Innova Car bearing No. DL1VB6712 namely Sh. Yash @ Sumit Pal. He exhibited his complaint as Ex. PW4/A, seizure memo of mobile phone as Ex. PW4/B, seizure memo of the motorcycle as Ex.
PW4/C, arrest memos of the accused persons as Ex. PW4/D to Ex. PW4/F respectively and personal search memos of the accused persons as Ex. PW4/G to Ex. PW4/I respectively.
e) PW5 was the Duty Officer (DO) namely ASI Dharamvir. PW5 exhibited the FIR as Ex. PW5/A, his endorsement on the rukka as Ex. PW5/B and DD No. 16A as Ex. PW5/C.
f) PW6 was Inspector Sandeep Ghai who deposed regarding the alleged incident as witnessed by him.
g) PW7 and PW8 were HC Daleep Kumar and Ct. Amar Baliyan respectively who accompanied the IO SI Somvir to the spot. PW7 exhibited the seizure memo of the Innova car as Ex. PW7/A and disclosure statements of accused persons as Ex. PW7/B to Ex. PW7/D respectively.
h) PW9 Medical Record Technician (MRT) Sh. Rajbir Singh appeared on behalf of Dr. Deepak Sugan Chand who had prepared the MLC bearing no. 1835/15 of the injured Yash @ Sumit. PW9 Sh. Rajbir Singh exhibited the MLC as Ex. PW9/A. FIR No. 292/15 State Vs. Deepak & Ors. 3/10
i) PW10 was the second Investigating Officer (IO) of the case namely ASI Kishore Kumar.
j) PW11 and PW 12 were the IOs of the case namely ASI Rajender and SI Somvir Singh respectively. PW12 exhibited the site plan as Ex. PW12/A.
6. Prosecution evidence was closed on 01.10.2018. After conclusion of prosecution evidence, the statements of accused persons (SA) under section 313 r/w section 281 Cr.P.C was recorded on 11.10.2018. Accused persons stated that they wanted to lead defence evidence however no defence witness was examined by the accused persons and they closed defence evidence on 20.10.2018.
FINAL ARGUMENTS:
7. Thereafter final arguments were advanced by Ld. APP for the State and Ld. counsel for the accused persons. I have heard the arguments and perused the record.
REASONS FOR DECISION:
8. The prosecution has an onerous task of establishing the guilt of the accused beyond reasonable doubt. That is the cardinal principle of criminal jurisprudence.
9. Ld. APP for the State argued that the prosecution had established all the material facts necessary to constitute the offences alleged i.e. robbery, dishonest retention of the stolen case property by the accused persons and commission of mischief by them. On the other hand, Ld. defence counsel argued that the prosecution had failed to prove the commission of the offences U/s 394/427/34 IPC and it was actually a case of road rage which had been given such a colour.
10. The two main witnesses examined by the prosecution in the present FIR No. 292/15 State Vs. Deepak & Ors. 4/10 case are PW4/complainant Sh. Yash@Sumit Pal and PW6 Inspector Sandeep Ghai. A close scrutiny of the testimonies of PW4 Sh. Yash @ Sumit Pal and PW6 Inspector Sandeep Ghai shows that their versions are inter se contradictory on various material aspects and their versions do not add up.
11. The complainant/PW4 Sh. Yash @ Sumit testified to the effect that he was driving the vehicle Innova of the owner Ms. Radha Sahi at the time of the alleged incident and when he was parking his vehicle near APS School side and tried to turn his vehicle, one motorcycle make Pulsar red colour came from the cemetery side on which three persons were sitting. He testified that the person sitting on the back side of the motorcycle tried to break the side mirror of the complainant's vehicle and then skid the motorcycle in front of the complainant's vehicle. One of the accused persons who was driving the motorcycle came and brought the complainant down from his vehicle and started beating him and used abusive language for the complainant. PW4/complainant also testified that one of the accused took out a wooden stick and started smashing the bonnet of his vehicle and when he tried to call the owner from his mobile phone then one of the accused snatched his mobile phone. PW4 deposed that thereafter they started beating him and one of the accused snatched the key of his vehicle and started the vehicle and tried to run away with it and public persons gathered at the spot.
12. PW4 testified that one police gypsy which was patrolling there came at the spot and he narrated the incident to the police officials who chased the accused alongwith the vehicle and stopped them. He testified that thereafter he came there and one police official apprehended one of the accused persons and the remaining two accused persons fled away from the spot on their motorcycle. PW4 also testified that he alongwith the police officials and the accused came to the police station where his mobile phone which was snatched by the accused was FIR No. 292/15 State Vs. Deepak & Ors. 5/10 found in his pocket. He went on to depose that the police also arrested the other accused persons and called the complainant in the police station in the evening on the same day of the incident.
13. From the testimony of the complainant/PW4 Yash@Sumit Pal it appears as if all the accused persons tried to flee with the complainant's vehicle and the complainant on spotting the police gypsy narrated the incident to the police officials who chased the vehicle, stopped the accused persons and apprehended one of them while the other two escaped on a motorcycle.
14. The version in the testimony of PW6 Inspector Sandeep Ghai however, was to the effect that on reaching near Gate No. 2 of APJ School he alongwith his staff i.e. driver and operator saw the accused Himanshu beating the complainant and intervened and the complainant told him that the friend of the accused had snatched the Innova car. According to PW6 Inspector Sandeep Ghai, his driver chased the Innova car with the gypsy for 5060 meters and stopped the Innova car but in the meantime the driver of the Innova car fled away from the spot with his associate who was present with the motorcycle.
15. From the aforesaid testimony of PW6 it seems as if the accused Himanshu never left the spot and was engaged in an altercation with the complainant and one of the accused persons was trying to flee with the Innova car while the third one was on the motorcycle and those two then fled on the motorcycle. The versions of PW4/complainant and PW6 Inspector Sandeep Ghai on this score do not reconcile. If the witnesses of the same alleged set of facts do not corroborate each other on material aspects of the case then it raises a cloud of doubt over the prosecution's case.
16. It is also unclear from the testimony of the complainant/PW4 as to whether the accused persons came back to the spot to collect the motorcycle or it FIR No. 292/15 State Vs. Deepak & Ors. 6/10 was parked some where farther away from the spot of incident.
17. Coming to the purported recovery proceedings it is pertinent to note that PW6 Inspector Sandeep Ghai deposed that as he knew, his operator took the search of the accused Himanshu and found the mobile phone make Nokia from the accused which belonged to the complainant. The Operator of PW6 Inspector Sandeep Ghai has not been cited as a prosecution's witness by the IO for reasons best known to him. Thus the person who actually purportedly effected the recovery of the snatched mobile phone i.e. the Operator accompanying PW6 was never examined and the vital chain of evidence was broken due to the lapse on the part of the IO.
18. Additionally, the complainant/PW4 testified in his crossexamination that the IO had taken the mobile phone from him at the police station. PW11 ASI Rajender had testified that the complainant produced the mobile phone at the spot and he seized the same vide seizure memo Ex. PW4/B. If the mobile phone in question had been seized at the spot then the question arises as to how the complainant could have handed it over to the IO in the police station? This leads to either of two conclusions; that the complainant had deposed incorrectly regarding the place where the phone was handed over to the police or the prosecution's version regarding the seizure at the spot is incorrect. Either way, the suspicion over the prosecution's case is compounded.
19. Coming to the aspect of the arrest proceedings of the accused persons Deepak and Sushant, the testimonies of the prosecution's witnesses regarding the same are fraught with material contradictions and inconsistencies. As per the chargesheet allegations, the aforesaid accused persons were arrested from their respective houses by the police officials who went alongwith the complainant and the accused Himanshu and the motorcycle was recovered from the house of the FIR No. 292/15 State Vs. Deepak & Ors. 7/10 accused Sushant however the complainant/PW4 did not depose during trial that he accompanied the police officials and accused Himanshu for the search of the accused persons Deepak and Sushant.
20. PW7 HC Daleep Kumar testified that he went alongwith the IO SI Somvir to the spot where he saw one Innova car and accused persons were already apprehended by some police officials. He testified that the complainant also met at the spot and then they took the accused persons (instead of a single accused) and the complainant to the police station with the Innova car and the offending motorcycle. From the crossexamination of this witness it becomes clear that according to him two of the accused persons were arrested at the spot itself and the offending motorcycle was also found at the spot which is not at all the case set up by the prosecution in the chargesheet allegations. When Ld. APP for the State cross examined, PW7 HC Daleep Kumar, this witness clearly admitted the fact that the accused persons were arrested at the spot in his presence vide arrest memos Ex. PW4/D to Ex. PW4/F.
21. PW7 HC Daleep Kumar admitted mechanically in the cross examination conducted by Ld. APP for the State that the offending vehicle was parked in front of the house of the accused Sushant. When cross examined by ld. Defence counsel PW7 HC Daleep Kumar contradicted himself deposing that the police officials went to the house of the accused Himanshu (instead of Sushant) for recovery of the motorcycle and he also deposed that the arrest memo of the accused Himanshu was prepared by the IO in the house. His testimony just adds to the doubt over the veracity of the prosecution's case.
22. Similarly, PW8 Ct. Amar Baliyan testified during trial that on reaching the spot with the IO HC Rajender Prasad on the day of the alleged incident, he saw the Innova car, accused persons who were apprehended by the FIR No. 292/15 State Vs. Deepak & Ors. 8/10 SHO PS Ct. Greater Kailash and the complainant. He too in his crossexamination conducted by Ld. APP for the State deposed that the IO arrested the accused persons at the spot in his presence. In his crossexamination by Ld. Defence counsel, PW8 Ct. Amar Baliyan could not even recollect as to from whose possession the mobile phone was recovered.
23. The complainant/PW4 deposed that one of the accused persons took out a stick/danda and started smashing the bonnet of his vehicle. It is not possible that the accused persons were carrying the stick inside the motorcycle as a motorcycle design does not allow for storing of articles such as danda inside the motorcycle. PW6 Inspector Sandeep Ghai did not make any mention of stick being carried by any of the assailants in his examination in chief and deposed in his cross examination that he was not aware whether the accused Himanshu had used any weapon while beating the complainant. Curiously the complainant/PW4 deposed during trial that the stick was recovered by the IO but the IO did not prepare any seizure memo of the stick. It is not the prosecution's case that any such stick was ever recovered so the complainant's testimony on the aspect of the purported stick and its alleged recovery is contrary to the prosecution's case. As per the accused persons it was the complainant who was in possession of a stick at the time of the alleged incident. As to who was the person who was driving the motorcycle and who was the one who snatched the key of the vehicle of the complainant was not clarified by the complainant during trial, even by pointing out towards the individual accused persons.
24. Further, as to whether the accused Himanshu was apprehended from the complainant's vehicle after it was chased by the police gypsy as it appears from the complainant's testimony, or whether the SHO Inspector Sandeep Ghai, PS Greater Kailash intervened while the accused Himanshu was assaulting the FIR No. 292/15 State Vs. Deepak & Ors. 9/10 complainant and the other accused persons had fled away, is not clear. The prosecution's witnesses could not clearly testifying regarding the recovery proceedings of the motorcycle and the police witnesses were confused about the number of accused persons arrested at the spot. There is a grave cloud of doubt cast over the purported recovery proceedings of the mobile phone as well.
25. By no means can it be said that the prosecution was able to establish its case beyond reasonable doubt. The defence of the accused persons that it was a case of road rage is a plausible defencec. It is settled law that when two views are possible, the one favouring the accused persons is to be taken.
26. Accordingly, all the accused persons are extended the benefit of the doubt and are acquitted for the offences U/s 394/427/34 IPC.
27. The previous bail bonds of the accused persons Deepak, Himanshu Dass and Sushant shall remain in force for a further period of six months from today. File be consigned to record room after necessary compliance. Digitally signed by ANJANI ANJANI MAHAJAN MAHAJAN Date:
2018.11.22 18:16:00 +0530 Announced in the Court (ANJANI MAHAJAN) on 20.11.2018 MM02(SD)/20.11.2018 Certified that this judgment contains 10 pages and each page bears my signatures.Digitally signed by ANJANI
ANJANI MAHAJAN
MAHAJAN Date:
2018.11.22
18:16:08 +0530
(ANJANI MAHAJAN)
MM02(SD)/20.11.2018
FIR No. 292/15 State Vs. Deepak & Ors. 10/10