Delhi District Court
State vs . Kamal @ Ashu & Ors. on 28 September, 2022
FIR No.108/15
State Vs. Kamal @ Ashu & Ors.
PS Dabri
U/s 394/397/34 IPC
IN THE COURT OF VIPLAV DABAS,
ADDITIONAL SESSIONS JUDGE
FAST TRACK COURT, DWARKA COURTS, NEW DELHI.
JUDGMENT
(a) CNR No. of the Case DLSW01-000743-2018
(b) Name, Parentage and 1. Kamal @ Ashu
S/o Sh. Raghu Raj
addresses of the accused
R/o RZM 23, Gali no. 3, Vijay
persons. Enclave, New Delhi.
2. Chhota Don @ Vijay
S/o Sh. Mani
R/o RZB-4 Tamil Enclave,
New Delhi.
3. Bhaire @ Pawan
S/o Sh. Ram Prasad
R/o RZJ 108, Gali No.3 Vijay
Enclave
New Delhi.
(c) Offence 394/34 IPC r/w/s 397 IPC
(d) Plea of accused Pleaded not guilty
(e) Final Order Acquitted
(f) Date of institution 05.08.2017
(g) Date of Session committal 08.01.2018
(h) Date of Transfer to this 22.09.022
court
(i) Date of reserving 28.09.2022
judgment
(i) Date of judgment 28.09.2022
FIR No. 108/15 PS Dabri State Vs. Kamal & Ors. Page No.1 of 1
FIR No.108/15
State Vs. Kamal @ Ashu & Ors.
PS Dabri
U/s 394/397/34 IPC
BRIEF FACTS AND REASONS FOR DECISION:-
FACTUAL MATRIX
1. On 22.01.2015, at about 7.15pm, near Pipal tree, power house Red light, behind Bus stand, Dabri, New Delhi, within the jurisdiction of PS Dabri, accused persons Kamal @ Ashu, Bhaire @ Pawan and Chhota Don @ Vijay in furtherance of their common intention with their associates, robbed complainant Abhishek Kumar of Rs.3000/- and further caused hurt to him and used a deadly weapon i.e. knife and accused Chhota Don and Bhaire @ Pawan hit the complainant by punching on his face. On the basis of the said allegations, present FIR was registered and a charge-sheet for offences punishable u/s 394/397/34 IPC was filed after usual investigation.
COURT PROCEEDINGS
2. The Court of Ld. Magistrate took cognizance of the above-said offence u/s 394/397/34 IPC and after the provisions of Section 207 Cr.P.C were complied, the matter was committed to the Ld. Sessions Court. After hearing arguments, as a prime facie case was made out against the accused person Kamal @ Ashu for offences punishable u/s FIR No. 108/15 PS Dabri State Vs. Kamal & Ors. Page No.2 of 2 FIR No.108/15 State Vs. Kamal @ Ashu & Ors.
PS Dabri U/s 394/397/34 IPC 394/34 read with Section 397 IPC and accused Bhaire @ Pawan and Chhota Don @ Vijay for offence punishable u/s 394/34 IPC, charge was accordingly framed against them to which accused persons pleaded not guilty and claimed trial.
3. In order to prove the guilt of the accused persons u/s 394/397 read with 34 IPC, the prosecution has to prove the following essential ingredients of the said Sections:
a. Section 394 IPC:- If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall be liable to fine.
b. Section 397 IPC:- If at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
c. Section 34 IPC:-
i) That the criminal act or a series of acts which include omissions and need not necessary be an overt act should have been done not by one person but by more then one person.
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PS Dabri U/s 394/397/34 IPC
ii) That the doing of every such individual act cumulatively resulting into the commission of criminal offence should have been in furtherance/ advancement/ promotion of common intention of all such persons.
PROSECUTION EVIDENCE
4. To prove the aforesaid ingredients, prosecution started its evidence with the testimony of prosecution witnesses as per the list.
5. PW-1/ Retd. ASI Lachhi Ram deposed that on 12.10.2015, he was posted at PS Dabri as ASI and on that day investigation of the present case was marked to him. During investigation, he had recorded the statement under Section 161 CrPC of Sunny. Thereafter he had prepared the chargesheet and filed the same before the court concerned on 02.06.2017 after getting it signed and forwarded through SHO concerned and ACP. This witness was not cross examined on behalf of accused despite opportunity.
6. PW-2 ASI Balwant Singh deposed that on 22.01.2015 he was posted at PS Dabri as duty officer from 8.00pm to 8.00am. At about 8.55pm, Ct. Arun bought rukka which was sent by SI Mukesh. On the basis of rukka, he registered FIR Ex.PW2/A bearing his signature at FIR No. 108/15 PS Dabri State Vs. Kamal & Ors. Page No.4 of 4 FIR No.108/15 State Vs. Kamal @ Ashu & Ors.
PS Dabri U/s 394/397/34 IPC point A. Thereafter he had issued certificate under Section 65 B of Indian Evidence Act Ex. PW2/B bearing his signature at point A. He further deposed that he made endorsement Ex.PW2/C bearing his signature at point A on rukka. He further stated that after registration of the cse, he handed over the copy of FIR and original rukka to Ct. Arun and stated to him to hand over the same to SI Mukesh as the investigation was marked to SI Mukesh. This witness was not cross examined on behalf of accused despite opportunity.
7. PW-3 Inspector Mukesh Kumar (due to typographical error, he has been mentioned as PW-2) deposed that on 22.01.2015 he was on emergency duty as SI. On that day, at about 7.25pm on receipt of DD No.50-B Ex. PW2/A wherein the caller had stated that 3-4 persons had robbed an amount of Rs.2500/- by showing knife to his nephew, he along with Ct. Samar reached at the spot where he met the complainant Abhishek Kumar, who gave statement and he made endorsement Ex. PW2/B bearing his signature at point A. He handed over the rukka to Ct. Samar for registration of FIR, who got the FIR registered and came back to spot and handed over the same to him. He prepared site plan Ex.PW2/C at the instance of complainant bearing his signature at point A. Thereafter he had sent the complainant for medical examination along with Ct. Samar to DDU Hospital and he collected the MLC of the injured.
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PS Dabri U/s 394/397/34 IPC
8. He further deposed that on 06.02.2015, he received information about the accused through secret information. He along with Ct. sukhram, Ct. Amit and Ct. Krishan went to red light power house at Mahavir Enclave along with secret informer. He further deposed that at the instance of secret informer, they apprehended accused Kamal @ Ashu, Bhaire @ Pawan and Chhota Don @ Vijay. He further stated that he arrested all the accused persons vide memos Ex. PW2/D, Ex. PW2/E and Ex. PW2/F bearing his signature at point A and conducted their personal search vide memos Ex.PW2/G, Ex. PW2/H and Ex. PW2/I and recorded their disclosure statements vide memo Ex. PW2/J, Ex. PW2/K and Ex. PW2/L. Thereafter he recorded the statements of witnesses under Section 161 Cr.PC and got conducted medical examination of accused persons. Thereafter accused Bhaire and Chhota Don were sent to JC and he took police custody of accused Kamal in search of knife. He further deposed that during police custody, accused led to some spots but weapon of offence i.e. knife was not recovered and thereafter the accused was produced before the court which sent them to JC. He further stated that thereafter he was transferred and investigation was conducted by ASI Lacchi Ram, who recorded the statement of uncle of accused namely Sunny and after completion of investigation, he had filed the charge sheet. He further correctly identified the accused persons who were present in the court during FIR No. 108/15 PS Dabri State Vs. Kamal & Ors. Page No.6 of 6 FIR No.108/15 State Vs. Kamal @ Ashu & Ors.
PS Dabri U/s 394/397/34 IPC his deposition.
In the cross examination conducted on behalf of accused, this witness denied the suggestion that accused has been falsely implicated.
9. PW-4 Abhishek/complainant (due to typographical error he has been mentioned as PW-3) deposed that in the month of January, 2015 at about 7.00pm, he went to purchase medicine for his mother and when he was returning towards his home and had reached near Peepal ka ped, Vijay Enclave, Power House Red Light, one person had caught hold him from back side and he had snatched Rs. 1,000-1200/- and another person had hit him on his face and he fell down. He deposed that thereafter, he proceeded towards his house and he informed about the incident to his uncle that the persons who had snatched Rs. 1000/- from him were wearing mufflers on their faces and he cannot identify them. He further stated that he had not given any statement to the police. He further deposed that thereafter his uncle had called 100 number and informed the police and he stated to the police about the aforesaid facts and they had obtained his signatures on blank papers and he did not know what was written on the same.
Thereafter, Ld. (substitute) Additional PP for State was permitted by court to cross examine the witness as the witness was resiling from his statement given to the police. During cross examination conducted FIR No. 108/15 PS Dabri State Vs. Kamal & Ors. Page No.7 of 7 FIR No.108/15 State Vs. Kamal @ Ashu & Ors.
PS Dabri U/s 394/397/34 IPC by Ld. (substitute) Additional PP for the State he stated that he had studied upto 10th and he did not know reading and writing. (During his deposition, Witness was confronted with the complaint Ex. PW-1/A and after going through the same, the witness denied the same as he had not given such statement to the police. However, he admitted his signatures on Ex. PW-1/A). He further denied the suggestion given by Ld. (substitute) Additional PP for the State that he had stated in his complaint the names of accused Kamal, Bhaire and Chhota Don. He further denied that the accused Kamal, Bhaire and Chhota Don had came to him and they had kept hand on his shoulder and took him to one side. (During his deposition, witness was confronted with the portion from A to A1 in statement Ex. PW-1/A where it has been recorded). He further denied the suggestion that accused Kamal had kept a knife on his neck or that he asked him to give money. (During his deposition, witness was confronted with the portion from B to B-1 in statement Ex. PW-1/A where it has been recorded). He further denied the suggestion that when he had not handed over the amount to the accused, the accused Chhota Don had given a punch on his face and that accused Bhaire had forcefully taken Rs. 3000/- from his pocket. (During his deposition, witness was confronted with the portion from C to C-1 in statement Ex. PW-1/A where it has been recorded). He further stated that he had shown the place of incident to the police during his deposition, Ld. (substitute) Additional PP for State pointed out towards FIR No. 108/15 PS Dabri State Vs. Kamal & Ors. Page No.8 of 8 FIR No.108/15 State Vs. Kamal @ Ashu & Ors.
PS Dabri U/s 394/397/34 IPC the accused Bhaire, Chotta Don and Kamal and stated that they had committed the offence of robbery by keeping knife on his neck and after seeing the accused, witness denied and stated that they were not the persons who had taken amount from him. He further denied the suggestion that he was won over by the accused persons or that he is falsely deposing in favour of them. This witness was not cross examined on behalf of accused despite opportunity.
10. At request of Ld. Additional Public Prosecutor for State, PW-
Sunny was discharged unexamined as the complainant/ eye witness/victim Abhishek had turned hostile and no other material witness was remained to be examined in the present case. Thereafter, prosecution evidence was closed and case was listed for recording of statement of accused persons under Section 313 CrPC.
11. On 22.09.2022, statement of accused persons were recorded u/s 313 Cr.P.C wherein all the incriminating circumstances appearing in evidence were put to the accused persons and they replied that the facts alleged by the prosecution are incorrect, that they are innocent, that they have been falsely implicated in the present case and the witnesses are the interested witnesses. They did not opt to lead defence evidence and therefore, defence evidence was closed. Thereafter, matter was fixed for final arguments.
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PS Dabri U/s 394/397/34 IPC
12. This court heard the arguments advanced by the Ld. Addl. PP for the State and Ld. Counsel for the accused and has perused the record.
13. Ld. Substitute Additional Public Prosecutor argued that the police witnesses have clearly established the prosecution version of commission of robbery by the accused persons beyond all reasonable doubt in the alleged manner. He further argued that the fact that the complainant has turned hostile qua the identity of the accused persons as offenders does not in any manner effect the veracity of the consistent testimony of the police witnesses as they did not have any previous enmity with the accused persons. He further stated that moreover the complainants in such cases turn hostile due to fear of future enmity with the offenders, so the firm testimony of the police cannot be discarded in such circumstances and in these facts, all the accused persons be convicted for the offences charged.
14. Ld. counsel for the accused persons argued that the complainant who is the Star witness of the prosecution has not supported its version qua identity of the accused persons as robbers who had caused hurt to him by punching on his face and used knife for committing robbery. He argued that the testimony of the police witnesses is of no consequence in view of hostility of the main witness/ complainant. He further stated FIR No. 108/15 PS Dabri State Vs. Kamal & Ors. Page No.10 of 10 FIR No.108/15 State Vs. Kamal @ Ashu & Ors.
PS Dabri U/s 394/397/34 IPC that the fact that nothing was recovered during the entire investigation substantiates the defence version of false implication of the poor accused persons by the police for working out of the case. He further submitted that the accused persons in these circumstances should be acquitted.
15. In order to prove the offense U/s 394/397/34 IPC against accused Kamal @ Ashu and offence u/s 394/34 IPC against accused Bhaire @ Pawan and Chhota Don @ Vijay, the prosecution was required to prove beyond reasonable doubt the factum of happening of alleged robbery in alleged manner, the identity of all the accused persons as assailants/robbers, the factum of sharing of common intention by all the accused persons for commission of robbery by putting the complainant in fear of death by using the knife. For proving the aforesaid ingredients, the prosecution examine four witnesses out of which PW-4/ victim Ahbhishek(due to typographical error mentioned as PW-3) is the most important witness being the sole eye witness of the incident and the remaining witnesses are the police officials who carried out the investigation based on the version of the complainant/victim.
16. Henceforth, court shall now proceed further to evaluate the evidence available on record to find out if the prosecution has succeeded in its task or not.
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PS Dabri U/s 394/397/34 IPC
17. Complainant being the eye-witness/victim of the alleged incident was examined as PW-4. The complainant/victim was the star witness on which prosecution was relying but he did not support the case of prosecution and turned hostile qua the allegations made by him in his statement recorded under Sections 161 Cr.P.C as well as on the aspect of identity of the accused persons who had robbed him and caused hurt to him by punching on his face and used knife. He stated in his examination in chief that he informed about the incident to his uncle. However, he was unable to recognise the faces of the accused persons as they were wearing mufflers on their faces. He also state in hic chief examination that his uncle had called at 100 number and narrated the incident to the police. He stated that he had only put his signatures on blank papers and did not know what was written on them. He was cross-examined by the Ld. Addl. P.P for the State but he firmly denied all the leading questions put by the prosecution.
18. PW-1 denied his complaint Ex. PW-1/A and stated that he had not given any such statement to the police. He specifically denied the suggestions put to him in cross examination by Ld. Addl. PP for the State that he had stated in his complaint the names of accused Kamal, Bhaire and Chhota Don, that the accused Kamal, Bhaire and Chhota Don had came to him and they had kept hand on his shoulder and took FIR No. 108/15 PS Dabri State Vs. Kamal & Ors. Page No.12 of 12 FIR No.108/15 State Vs. Kamal @ Ashu & Ors.
PS Dabri U/s 394/397/34 IPC him to one side, that accused Kamal had kept a knife on his neck or that he asked him to give money, that when he had not handed over the amount to the accused, the accused Chhota Don had given a punch on his face and that accused Bhaire had forcefully taken Rs. 3000/- from his pocket and that he had shown the place of incident to the police during his deposition.
19. After seeing that accused persons, on being pointed out by Ld. (substitute) Additional PP for State, witness stated that they were not the persons who had committed the offence of robbery by keeping knife on his neck and had taken amount from him. He further denied the suggestion that he was won over by the accused persons or that he is falsely deposing in favour of them.
20. The testimony of PW-4 shows that he not only failed to identify the accused persons as offenders who had robbed him but also shattered the prosecution version with respect to the conducting of investigation on the basis of his complaint. It follows from aforesaid testimony that the factum of commission of robbery by the accused persons by hurting the complainant by punching on his face and using the knife, is not established at all.
21. Perusal of the record shows that PW-4 is the only eye witness of FIR No. 108/15 PS Dabri State Vs. Kamal & Ors. Page No.13 of 13 FIR No.108/15 State Vs. Kamal @ Ashu & Ors.
PS Dabri U/s 394/397/34 IPC the incident being the victim. Mere reading of testimony of police witnesses PW-1/ ASI Lacchi Ram, PW-2/ASI Balwant Singh, PW-3 Inspector Mukesh Kumar, who went to the spot for investigation after receiving information of the alleged incident, shows that they are not the eye witnesses of the incident and have merely conducted the investigation based on the version stated by the complainant/victim. Furthermore, perusal of the testimony of PW-4 reveals that he deposed that he had not given any statement to the police, that thereafter his uncle had called 100 number and informed the police, that he stated to the police about the aforesaid facts, that they had obtained his signatures on blank papers and that he did not know what was written on the same. PW-4 firmly denied in his cross examination conducted by the Ld. Additional Public Prosecutor that his complaint Ex.PW-1/A by stating that he had not given any such statement to the police but the same bears his signatures. These testimonies indicate that chances of manipulation of the documents by the police are not ruled out. It further creates grave doubt upon the fairness and impartiality of the investigation which renders the same nugatory. So, testimonies of the aforesaid police witnesses, in view of the hostility of the complainant, are of no consequence to incriminate the accused persons for the alleged offences.
22. It is clear from the aforesaid discussion that complainant/victim FIR No. 108/15 PS Dabri State Vs. Kamal & Ors. Page No.14 of 14 FIR No.108/15 State Vs. Kamal @ Ashu & Ors.
PS Dabri U/s 394/397/34 IPC failed to identify the accused persons as offenders/assailants despite being cross-examined at length by the Ld. Additional Public Prosector. It is also evident that the accused persons were neither arrested from the spot nor at the instance of the complainant/victim and they were arrested on 06.02.2015 through secret informer though the incident had happened on 22.01.2015. No explanation for the aforesaid delay has been given during the entire trial. Furthermore, nothing was recovered or discovered at the instance of accused persons. These observations show that there is not even an iota of incriminating material available against the accused persons to connect them with the commission of the alleged offences punishable under sections.
23. It is already evident from the aforementioned discussion that identity of the accused persons as offenders has not been established. It is further pertinent to mention that the prosecution did not bring any material suggesting the sharing of common intention by the accused persons for commission of the alleged offences. Neither any telephonic record or nor any other electronic evidence or other direct evidence has been brought on record suggesting the prior acquaintance of all the accused persons or even their presence at the spot so as to assume that there was ever an occasion for the accused persons to share common intention for committing the alleged offences at the spot.
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24. It thus emerges from the aforesaid discussion and perusal of testimonies of PWs as well as record that there is neither any reliable eyewitness of the incident nor any other circumstance to prove the identity of all the accused persons as assailants/robbers, the factum of sharing of common intention by all the accused persons for hurting the complainant by punching on his face and using knife for committing robbery by putting the complainant in fear of death which are essential elements for completion of offence punishable u/s 394/397/34 IPC and u/s 25/27 Arms Act.
25. Considering the afore-discussed testimonies, this Court is of the view that arguments advanced by the Ld. Substitute Additional Public Prosecutor for the State that the prosecution has proved all the ingredients necessary for completion of the alleged offences do not have any force whereas the arguments made on behalf of defence that the accused has been falsely implicated are found to be justified.
26. In view of the aforesaid discussion, this Court is of the view that the prosecution has not been able to prove its case against the accused persons beyond reasonable doubts. Accordingly, accused persons Kamal @ Ashu is hereby acquitted of the charge u/s 394/397/34 IPC and accused Bhaire @ Pawan and Chhota Don @ Vijay are hereby acquitted of the charge u/s 394/34 IPC levelled against them. Bail FIR No. 108/15 PS Dabri State Vs. Kamal & Ors. Page No.16 of 16 FIR No.108/15 State Vs. Kamal @ Ashu & Ors.
PS Dabri U/s 394/397/34 IPC bonds stands cancelled and Sureties be discharged, if any. Documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any.
27. Fresh bail bonds and surety bonds furnished in compliance of Section 437 (A) Cr.P.C are considered and accepted.
28. File be consigned to the Record Room after due compliance.
Announced in the Open Court (VIPLAV DABAS)
on 28.09.2022 Additional Sessions Judge
Fast Track Court, Dwarka Courts,
New Delhi/28.09.2022.
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