Delhi District Court
State vs . Ram Naresh on 23 January, 2023
IN THE COURT OF SHRI KAPIL GUPTA
METROPOLITAN MAGISTRATE-07, PATIALA HOUSE
COURTS
NEW DELHI DISTRICT: NEW DELHI
FIR No. : 418/14
Cr C No. : 51923-16
PS : Mandir Marg
U/s : Ram Naresh
State Vs. Ram Naresh
JUDGMENT
A Case Identification 51923-16
Number
B Name of the Ms. Jyotsna Saxena
Complainant
C Name of the accused & Sh. Ram Naresh
his parentage and
address
D Offence complained of U/s 392 /411 IPC
E Date of commission of 31.12.2014
offence
F Date of Institution 20.11.2015
G Offence Charged U/s 392 /411 IPC
H Plea of accused Accused pleaded not
guilty
I Order Reserved on 17.01.2023
FIR No. 418/14 State Vs. Ram Naresh Page 1 of 12
J Date of Pronouncement 23.01.2023
K Final Order Acquittal
1. In brief, facts of the case as alleged by the prosecution are that FIR No. 418/14 dated 31.12.2014 was got registered at PS Mandir Marg under Section 392/411 IPC upon the complaint of Ms. Jyotsna Saxena alleging that on 31.12.2014 at about at about 7:30 pm at Gole Dakhana, in front of the Church, accused committed robbery of mobile phone of the complainant and caused her hurt by pushing her while committing said robbery. It is further alleged that the accused was apprehended after about a short distance from the spot by HC Rajan Chauhan and the accused was found in possession of abovesaid mobile phone and thus, the accused committed offence punishable under Section 392/411 IPC. Upon completion of investigation, final report in the form of charge-sheet was forwarded to the Court for trial of accused for commission of offence under Section 392/411 IPC.
2. After taking cognizance of the offence, the accused was summoned and after compliance of Section 207 CrPC and after hearing the parties concerned, a formal charge for commission of offence under Section U/s 392 Part II/411 IPC was framed upon the accused, to which he pleaded not guilty and claimed trial.
3. The accused admitted FIR No. 418/14 Ex. P1 and DD No. 48B dated 31.12.2014 Ex. P2 in his statement under Section 294 Cr.P.C and the corresponding witness were dropped.
FIR No. 418/14 State Vs. Ram Naresh Page 2 of 124. In order to prove its case against the accused, the prosecution examined 03 witnesses.
5. HC Rajan Chauhan was examined as PW 1 who deposed that on 31.12.2014, he was posted at PS Mandir Marg as Head Constable and was performing his duty at Church Gole Dak Khana (BKS Marg) and at about 7:30 pm, he saw that one girl was chasing a boy and also raising alarm by saying "Chor Chor" and also saying that said boy had snatched her mobile. He deposed that upon seeing this, he chased the said boy for about 100 meters and caught him. He further deposed that the said boy was having one mobile phone in his hand and upon inquiry, he revealed his name as Ram Naresh. The accused was present in the court and was correctly identified by the witness. He also deposed that he made formal inquiry from the complainant who revealed her name as Jyotsana Saxena and also informed about the incident and meanwhile, ASI Tulsi Ram along with one Ct Ghanshyam reached at the spot and he handed over accused as well as mobile phone to ASI Tulsi Ram and thereafter, IO ASI Tulsi Ram made inquiry from the complainant and recorded her statement and prepared rukka and same was handed over to Ct. Ghanshyam for registration of FIR who got registered the present FIR and thereafter, IO prepared site plan at the instance of complainant Ex. PW1/A, seized mobile phone which was recovered from accused Ram Naresh vide seizure memo Ex. PW1/B, recorded disclosure statement of accused Ex. PW1/C, arrested the accused vide arrest memo which is now Ex PW1/D and prepared personal search memo of accused which is now Ex. PW1/E and recorded his statement U/s 161 CrPC. The photograph of the mobile phone was identified by the witness.
FIR No. 418/14 State Vs. Ram Naresh Page 3 of 126. In his cross-examination he stated that he cannot say whether any public witness was present there or not at the spot as it was evening time and when had seen to the complainant causing alarming, he started chasing the accused and his motive was to apprehend the culprit, so he did not pay any heed towards other person, if any. He stated that the IO was not present at the spot as he came to the spot after receiving information of alleged incident. He denied the suggestion that the alleged incident had been committed by another person / culprit and at the behest of complainant, he is falsely implicating the accused.
7. Ct. Ghanshyam Singh was examined as PW 2 who deposed that on 31.12.2014, he was posted as Constable at PS Mandir Marg and was performing his emergency duty from 8:00 am to 8:00 pm along with ASI Tulsi Ram and on such day, he was informed vide DD No. 48B regarding snatching of mobile phone of a lady at Gol Dak khana in front of Church. He deposed that he joined investigation of the present case along with ASI Tulsi Ram and they reached the spot and met with complainant Jyotsna Saxena and HC Rajan, who handed over one person namely Ram Naresh and also handed over one mobile phone to the IO and thereafter, IO made interrogation from complainant Jyotsna Saxena and recorded her statement and on the basis of said statement, prepared rukka and same was handed over to him for registration of FIR and he went to PS and got registered present FIR and came back to the spot and handed over the copy of FIR and rukka to IO. He further deposed that thereafter, IO arrested Ram Naresh vide arrest memo already Ex. PW1/D, prepared personal search memo Ex. PW1/E, seized mobile phone vide seizure memo Ex. PW1/B, recorded disclosure statement of accused Ex. PW1/C and he went to police station and deposited the case property in Malkhana and IO recorded his FIR No. 418/14 State Vs. Ram Naresh Page 4 of 12 statement. Accused was present in the Court and was correctly identified by the witness. The witness correctly identified the case property from the photograph.
8. In his cross-examination he stated that when they reached the spot, there were many persons gathered there but he cannot say whether they had seen incident or not. He stated that IO did not take any step to interrogate said persons in his presence, however, he cannot say, if IO made any effort to interrogate said persons when he went to PS for registration of FIR. He admitted that he was not an eye witness of incident.
9. Retd. SI Tulsi Ram was examined as PW 3 who deposed that on 31.12.2014, he was posted at PS Mandir Marg and was performing his emergency duty in the police station from 08:00 am to 08:00 pm. He deposed that at about 07:31 pm, he received DD No 48-B which was related to snatching of a mobile phone and thereafter, he alongwith Ct Ghanshyam went to the spot ie. Gol Dak khana in front of Church and met with HC Rajan Chauhan and complainant Jyotsana and accused Ram Naresh and the case property was already recovered by the abovesaid police official. He further deposed that thereafter, he made formal interrogation from complainant Jyotsana and HC Rajan, who handed over the case property as well as accused to him and recorded statement of complainant Jyotsana Saxena and prepared rukka and handed over the same to Ct. Ghanshyam for registration of FIR and the same was registered. The complaint of complainant was exhibited as Ex.PW3/A. He identified the signature of complainant as complainant had put her signature in his presence. He proved the rukka Ex.PW3/B stated that he prepared the site plan at the instance of complainant Ex PW1/A, seized the FIR No. 418/14 State Vs. Ram Naresh Page 5 of 12 case property i.e. mobile phone of complainant and the SIM of complainant vide seizure memo Ex PW1/B, arrested the accused vide arrest memo Ex PW1/D and personal search memo of accused Ex PW1/E. He also deposed that he recorded the statement of HC Rajan, HC Ghanshyam and supplementary statement of complainant Jyotsana Saxena on the very same day. Accused was present in the court today and identified by the witness. The witness correctly identified the case property from the photograph.
10. In his cross-examination he stated that he reached the spot and made efforts for an independent public witness of incident but no one was present there as an eye witness. He denied the suggestion that he never visited the spot and nothing was recovered from the possession of accused.
11. The statement of the accused U/s 313 Cr.P.C was recorded and all the incriminating evidence were put to the accused and he stated that he is innocent and has been falsely implicated in this case and due to said reason, police officials had not made any attempt to join independent public witnesses and police officials had taken him from his house and nothing was recovered from his possession. The accused opted not to lead any defence evidence.
12. I have heard the arguments put forth by the Ld. APP for the state and by Ld. Defence Counsel. I have also perused the material available on record.
13. It was argued by Ld. APP for the state that the prosecution has successfully proved its case beyond all reasonable doubt and that accused FIR No. 418/14 State Vs. Ram Naresh Page 6 of 12 was found in possession of the stolen case property. It is further argued that there are enough evidences available on record to bring home the guilt of the accused and has accordingly requested for conviction of the accused.
14. Per contra, it is argued by the Ld. Counsel for the accused that accused is completely innocent and has been falsely implicated in the case. It is further argued by the Ld. Counsel that there are no evidences to show that the alleged case property was either stolen by the accused or the fact that the said case property was found in his possession and has prayed for acquittal for the accused.
15. It is settled principle of criminal law that an accused is presumed to be innocent until proven guilty and the burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt by bringing on record reliable and credible evidence. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond reasonable doubt, unless otherwise so provided by any statute.
16. Section 392 IPC reads as follows:
Section 392 whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
17. Section 411 is defined as follows:
FIR No. 418/14 State Vs. Ram Naresh Page 7 of 12"Dishonestly receiving stolen property. - Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
18. The term "stolen property" is defined in Section 410 of the Indian Penal Code as follows:
"Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as "stolen property", whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without India. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property."
19. In order to prove the charge under Section 392 Part II IPC against the accused, the prosecution was required to prove the main ingredient of the said offence i.e. dishonest removal of the case property by the accused. Upon scrutiny of material available on record it is revealed that the complainant / victim did not appear before the court despite summons issued upon her through various authorities including DCP concerned being served on multiple occasions and thus, she was dropped as a witness. The entire prosecution case for the alleged robbery by the accused is based on FIR No. 418/14 State Vs. Ram Naresh Page 8 of 12 the complaint given by the complainant and she was the only eye witness of the alleged offence of robbery and her evidence could not be recorded as she did not come forward to depose in evidence as observed earlier. To prove the factum of robbery, prosecution did not examine any other eye witness of the alleged robbery by the accused. Moreover, the witnesses who were formal in nature did not depose any incriminating fact against the accused regarding alleged robbery. Further, the statement of the complainant and the witnesses recorded by IO cannot be considered to be the conclusive proof of the commission of alleged robbery and even the disclosure statement of the accused regarding the said offence cannot be the sole proof of the establishment of the fact of alleged robbery. Thus, in the absence of any incriminating evidence against the accused and in view of the above discussion, it can be observed that the accused could not have been said to have committed the alleged robbery. Thus, prosecution case of commission of offence of robbery cannot be considered to be standing on its own legs without the testimony of complainant or any other eye witness.
20. It is pertinent to mention that recovery has been effected in this present case allegedly from the accused.
21. To prove the offence of Section 411 IPC qua recovery of case property from the accused, prosecution examined HC Rajan Chauhan who had allegedly caught the accused with the stolen property. The witness had deposed that while he was performing his duty at Church Gole Dak Khana at about 7:30 pm, he saw that one girl was chasing a boy and also raising alarm by saying that "Chor Chor" and also saying FIR No. 418/14 State Vs. Ram Naresh Page 9 of 12 that said boy had snatched her mobile and upon this, he chased the said boy for about 100 meters and caught him and the said boy was having one mobile phone in his hand and upon inquiry, he revealed his name as Ram Naresh. As per the prosecution, this is the same stolen property which was stolen from the complainant.
22. As per the prosecution, HC Rajan Chauhan was allegedly the person who had caught the accused in possession of the case property. Upon perusal of the entire record it is revealed that copy of departure entry vide which the concerned witness who is a police official was present at the spot/ vicinity has not been brought to light by the prosecution. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal Vs. State 1987 (2) Crimes 29, wherein the Delhi High Court had observed as under:-
"if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations & thus the matter has to be viewed by the court with suspicion, if the necessary provisions of law are not strictly complied with and then it can at least be said that it was so done with an oblique motive. This failure of the prosecution to bring on record & prove the above noted relevant DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on to the actions of the members of the police party effecting the alleged recovery."
23. In view of the judgement of the Hon'ble High Court and considering the fact that departure entry regarding HC Rajan Chauhan being on duty was not produced in the court, the testimony of the only purported eye FIR No. 418/14 State Vs. Ram Naresh Page 10 of 12 witness to the recovery of the case property from possession of the accused cannot be relied upon. The remaining witnesses were formal in nature.
24. In view of the above discussion it is observed that there was no eye witness except for HC Rajan Chauhan to the alleged recovery of the stolen property from the possession of the accused and the prosecution was not able to prove that the said witness was present at the spot during the time of incident as his departure entry qua his presence at the spot could not be proved and thus, it cannot be ruled out that he was a planted witness and further, the recover in the present case was also planted. Further as observed earlier, the statement of the complainant and the witnesses recorded by IO cannot be considered to be the conclusive proof of the commission of alleged offence and even the disclosure statement of the accused regarding the said offence cannot be the sole proof of the establishment of the fact of alleged robbery and recovery of the stolen property from the accused.
25. Thus, in the absence of any incriminating evidence against the accused and in view of the above discussion, it can be observed that it could not be proved by the prosecution beyond reasonable doubt that the accused had committed the offence of robbery and the stolen property was recovered from his possession.
26. The court is of the considered view in light of the above discussion that the prosecution has completely failed to prove that alleged robbery was committed by the accused and the stolen property was recovered from possession of the accused as nothing incriminating FIR No. 418/14 State Vs. Ram Naresh Page 11 of 12 to suggest that the accused committed the offence could be brought on record. Thus, the prosecution failed to establish the ingredients of offence under Section 392 Part II/411 IPC alleged against the accused in the present matter beyond reasonable doubt.
27. In view of the evidence adduced, documents put forth and arguments advanced by the parties and further in view of the above discussion, the court is of the considered opinion that the accused Ram Naresh is not guilty of offence punishable U/s 392 Part II/411 IPC and accordingly, is hereby acquitted for the offence punishable under Section 392 Part II/411 IPC.
Announced in the (Kapil Gupta)
court on 23.01.2023 Metropolitan Magistrate - 07
New Delhi District, Patiala House Courts,
New Delhi
FIR No. 418/14 State Vs. Ram Naresh Page 12 of 12