Delhi District Court
State vs . Akbar on 25 April, 2022
IN THE COURT OF SH. BHARAT AGGARWAL, METROPOLITAN MAGISTRATE-
05, SHAHDARA, KARKARDOOMA COURTS, DELHI
FIR No. 54/18
PS - Madhu Vihar
U/s 392/411/34 IPC
State Vs. Akbar
JUDGMENT
A. SL. NO. OF THE CASE : 2642/18
B. DATE OF INSTITUTION : 18.04.2018
C. DATE OF OFFENCE : 18.02.2018
D. NAME OF THE : Sh. Moinuddin Khan
COMPLAINANT s/o Sh. Dildar Khan
E. NAME OF THE ACCUSED : Akbar S/o Sh. Hanif
PERSON
F. OFFENCE : U/s 392/411/34 IPC
COMPLAINED OF
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : Acquittal
I. DATE OF FINAL ORDER : 25.04.2022
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Accused is produced before the court to stand trial for the offence punishable u/s 392/411/34 IPC.
2. In brief, facts of the case as alleged by the prosecution are that upon receiving a DD no. 46-A PCR call on 18.02.2018, IO ASI Rajpal Singh alongwith HC Devender Kumar reached DDA Park, near Joshi Colony, Delhi-110092 where they met with the complainant Sh. Moinuddin Khan S/o Dildar Khan. The FIR no. 54/18 PS Madhu Vihar State vs. Akbar Page no. 1 of 15 complainant gave his statement to the police officials whereby he inter alia stated that at about 06.10 PM, he deboarded at Balco Market Bus stop from DTC bus no. 740 and was walking towards Joshi Colony and when he reached near DDA Park, two boys came from back side and they caught hold of him and took him to the park where they pressed his neck and asked him to handover all his valuables to the accused persons. Thereafter, one accused took out his purse from the pocket and the other one took out his mobile and then after pushing him they started running away from the place of incident. The complainant raised alarm after which some public persons caught one of the accused persons whose name was disclosed as Akbar S/o Hanif and the second one managed to flee away from the place of incident.
A purse containing Rs. 90/-, Aadhar Card and some visiting cards was recovered from the possession of the accused Akbar. Thereafter, somebody made a call on 100 number and thereafter police officials reached at the spot. Complainant handed over the accused Akbar to the police officials alongwith the said purse containing Aadhar Card bearing no. 369384108809, some visiting cards and Rs. 90/- was recovered from the possession of the accused Akbar.
Upon the complaint, IO got the FIR registered u/s 392/411/34 IPC. After registration of FIR, accused person was interrogated by the IO. He thereafter seized the case property i.e. the purse containing Aadhar Card, Rs. 90/- and some visiting cards, prepared the site plan at the instance of the complainant, arrested the accused person, recorded the statement of witnesses and recorded the disclosure statement of accused. It is further stated that in his disclosure statement, he stated that he committed the offence alongwith co-accused Bangali and he does not know the address of the co-accused.
Thereafter, IO got the MLC conducted of the accused Akbar and kept him in custody at the police station. On 19.02.2018, ASI Rajpal Singh produced the accused before the court got his police custody of one day to search the co- accused Bangali, however, it has been stated by the IO that despite search, the co- accused was not found and accordingly, accused Akbar was sent to JC after one FIR no. 54/18 PS Madhu Vihar State vs. Akbar Page no. 2 of 15 day's police custody. Upon completion of investigation, charge-sheet was filed by the IO against the accused Akbar in the court for the offences punishable u/s 392/411/34 IPC.
3. Accused Akbar was produced before the court on 20.04.2018 and copy of charge-sheet was supplied to him as per Sec. 207 Cr.P.C. Further, accused Akbar was charged for the offence u/s 392/411/34 IPC on 13.07.2018 by the Ld. Predecessor of this Court to which he pleaded not guilty and claimed trial. As per section 294 Cr.P.C., accused admitted the FIR and accordingly, witness at serial no. 2 duty officer HC Kuldeep Kumar was dropped from the list of witnesses vide order dated 25.02.2020.
PROSECUTION'S EVIDENCE:
4. In order to prove its case, prosecution has examined following witnesses :
4.1 PW-1 Complainant/ Moinuddin Khan deposed that on 18.02.2018 at about 06.00 PM, he was going towards Mulla Colony and was on road when two accused persons came from behind and caught hold of him and they immediately raised threats to him and asked him to hand over all his belongings to them. They also threatened him that if he refused to hand over his belongings then he will have to face dire consequences. He further deposed that accused persons forcibly took out his purse containing Rs. 90/- and his Aadhar Card and they also took out his mobile phone from the pocket of his pant. He further deposed that in the meanwhile he raised an alarm due to which the public persons also arrived at the spot and on seeing the public persons the accused persons became hopeless and tried to flee away from the spot. He further deposed that one of the accused person was apprehended by the public persons whereas the other accused managed to flee. He further deposed that the name of the apprehended accused was revealed FIR no. 54/18 PS Madhu Vihar State vs. Akbar Page no. 3 of 15 as Akbar. He further deposed that thereafter he made a call on 100 number on which the police officials arrived at the spot. He further deposed that he narrated the whole incident to the police officials which was reduced into writing vide Ex. PW-1/A. He further deposed that the accused was handed over to the police officials and thereafter accused was arrested vide arrest memo Ex. PW-1/B and his personal search was conducted vide personal search memo Ex.
PW-1/C. PW-1 further deposed that from the personal search of the accused his purse was recovered containing Rs. 90/- and some visiting cards and his Aadhar Card which was then seized vide seizure memo Ex. PW-1/D. He further deposed that police officials also prepared the site plan at this instance Mark-X. PW-1 correctly identified the case property when shown to him Ex. P1, Ex. P2 and Ex.P3. Upon asking of leading question by Ld. APP, PW-1 stated that accused persons held him from behind and scuffled with him but did not press his neck.
PW-1 was cross-examined at length by Ld. Counsel for the accused wherein inter alia he stated that he was going to Mulla Colony on the bus and had boarded the bus from Anand Vihar. He further stated that the said incident took place after 10 minutes when he boarded the bus at Anand Vihar. He further stated that he called the 100 number from his mobile phone. He stated that police official came at Madhu Vihar Bus Stop near the park after 15 minutes of his call at 100 number. He further stated that when he alighted from the bus at Madhu Vihar Bus Stop, there was no police official present there. He further stated that on the day of incident, he had only one mobile phone. He stated that the police officials came in a gypsy took him and the accused to the PS in the same gypsy. He further stated IO called him to PS and took his mobile invoice.
FIR no. 54/18 PS Madhu Vihar State vs. Akbar Page no. 4 of 15 4.2 PW-2 HC Devender Kumar deposed that on 18.02.2018, he was posted as a head constable at PS Madhu Vihar, and on that day upon receiving a PCR call, he alongwith ASI Raj Pal reached Balco Market where they met the complainant and other public persons. He further deposed that complainant produced a boy who was apprehended by the complainant and public persons. He further deposed that while producing the apprehended boy, complainant stated that the said boy alongwith his other associate has robbed his purse and mobile and that the other accused person ran away from the spot. He further deposed that IO recorded the statement of complainant and prepared a tehrir and handed over to the same to him for registration of FIR. He deposed that IO arrested the accused Akbar in his presence vide arrest memo Ex. PW-1/B and the accused was also got personally searched by the IO in his presence vide search memo Ex. PW-1/C. He further deposed that IO also seized the purse vide seizure memo Ex. PW-1/D and recorded the disclosure statement of the accused Akbar in his presence Ex. PW- 2/A. He further deposed that thereafter accused was got medically examined and sent to the lock up and IO had also recorded PW-2 statement. During examination-in-chief, PW-2 correctly identified the accused present in court. Upon asking of leading question by the Ld. APP, PW-2 stated that while producing the accused to the IO the complainant stated that the purse was recovered from the accused.
PW-2/HC Devender Kumar was cross-examined at length by Ld. Counsel for the accused wherein inter alia he stated that he alongwith the IO left from the PS after receiving the PCR call and they reached at the spot within 5-7 minutes by the private motor cycle of the IO. He further stated that IO tried to take the statement of the public persons available at the place of incident but no one was willing to give their statement. He further stated that he did not remember the time when he left from the spot finally and stated that FIR no. 54/18 PS Madhu Vihar State vs. Akbar Page no. 5 of 15 they stayed there for almost one hour. He further stated that when he alongwith IO left the spot, the complainant did not join them to the PS. 4.3 PW-3 ASI Rajpal Singh deposed that on 18.02.2018, he was posted at PS Madhu Vihar as ASI and on that day upon receiving the PCR call vide DD No. 46 A, he alongwith HC Devender Kumar reached the Balco Market, Bus stand, where they met the complainant Moinuddin Khan. He further deposed that complainant produced a boy namely Akbar who was apprehended by the complainant. PW-3/ASI Rajpal Singh further deposed that thereafter he recorded the statement of complainant Ex. PW-1/A, prepared the rukka Ex. PW-3/A1 and same was handed over to HC Devender for the registration of FIR. He further deposed that after registration of FIR, HC Devender returned at the spot alongwith original rukka and copy of FIR and same was handed over to him. He further deposed that thereafter he prepared the site plan at the instance of the complainant Ex. PW-3/A2, and arrested the accused vide arrest memo Ex. PW-1/B and personally searched him vide personal search memo Ex. PW-1/C. He further deposed that thereafter he recorded the disclosure statement of the accused Ex. PW-2/A in which he disclosed the involvement of other co-accused namely Bangali. He further deposed that he seized the case property vide seizure memo Ex. PW-1/D and recorded the supplementary statement of the complainant.
PW-3 deposed that they returned to the PS Madhu Vihar alongwith accused, deposited the case property in malkhana PS Madhu Vihar and recorded the statement of witnesses. He further deposed that on 19.02.2018, he got one day PC remand of the accused for apprehending the co-accused Bangali but the co-accused could not FIR no. 54/18 PS Madhu Vihar State vs. Akbar Page no. 6 of 15 be traced. PW-3/ASI Rajpal Singh correctly identified the accused present in court and case property Ex. P1 to Ex. P3.
PW-3/ASI Rajpal Singh was cross-examined at length by Ld. Legal Aid Counsel for the accused wherein inter alia he stated that he received the PCR call at 06.10 PM and he left the PS at around 06.15 PM. He further stated that when he reached the spot, public persons were also present there and he conducted the personal search of the accused and the purse belonging to the complainant was found in the pocket of accused. He further stated that he asked public persons to join the investigation but they refused to join the investigation. He stated that he did not serve any notice to the public persons. He further stated he remained at the spot for about 04 hours and when they left the spot complainant did not go to police station with them. He further stated that he prepared the arrest memo, personal search memo, seizure memo and statement of complainant at the spot. He stated that the incident occurred inside the DDA Park. He prepared the site plan at the spot but he do not remember whether the complainant had signed the same.
5. After completion of the prosecution evidence, statement of accused u/s. 313 Cr.P.C was recorded on 20.04.2022, wherein accused stated that he was falsely implicated in the present case and that he has not committed any offence as alleged.
ARGUMENTS ON BEHALF OF THE PROSECUTION AND DEFENCE:
6. It was argued on the behalf of the defence that the prosecution has failed to make out any case against the accused and he deserves to be acquitted. It was submitted by Ld. Counsel for accused that the accused has been falsely implicated by the police officials in the present case and the entire prosecution story is made- up and no offence has been committed by the accused. It was further submitted on FIR no. 54/18 PS Madhu Vihar State vs. Akbar Page no. 7 of 15 behalf of the accused that the complainant and the accused had a scuffle between each other in the bus due to which the complainant has falsely implicated him in the present case. It was argued on behalf of the defence that no case of conviction is made out against the accused as there are several contradictions in the version of the prosecution in the present case.
7. It was argued by the Ld. Legal Aid Counsel that it is the case of the prosecution that after the alleged incident some unknown person called the police on 100 number whereas during his testimony in court complainant has stated that he has himself called the police after the incident. Ld. Legal Aid Counsel vehemently argued that the complainant admitted that he had only one mobile phone and as per prosecution, mobile phone of the complainant was robbed by the accused persons. He stated that in such circumstances it was impossible for the complainant to call the police himself as allegedly his mobile was already robbed and therefore he emphasized that testimony of the complainant is not trustworthy.
8. It was also argued that PW-1, during his testimony has stated that police officials came in a gypsy and took him and the accused to the police station after the incident in the same gypsy. Whereas, PW-2 during his testimony recorded in court stated that he alongwith the IO reached the spot on a private motorcycle and PW-3/IO stated that complainant did not accompany them to the police station. Therefore, it was argued on behalf of the defence that the prosecution version is full of contradictions and does not inspire any confidence.
9. Ld. Legal Aid Counsel further argued that statement of the complainant made to the police reveals that the stolen purse was recovered from the accused at the spot before arrival of the police whereas, PW-3/IO during his testimony in the court stated that the purse of the complainant was found in right side pocket of the accused upon conducting his personal search. Buttressing the aforesaid fact, he argued that the alleged recovery of stolen property upon the accused is planted by the police officials and no offence under section 411 IPC is made out against the accused. Finally, it was vehemently argued on behalf of the accused that he has FIR no. 54/18 PS Madhu Vihar State vs. Akbar Page no. 8 of 15 not committed the offence he has been charged for and prosecution has failed to discharge its burden to prove that the accused has committed the offence complained of.
10. On the other hand, it was argued by the Ld. APP for the prosecution that prosecution has established the guilt of the accused beyond reasonable doubt especially through the evidence of the complainant and PW-3/IO ASI Rajpal Singh. He has further argued that the prosecution has been able to establish that the accused has committed the offence of robbery on 18.02.2018 by wrongfully restraining the complainant and pressing his neck while taking out his purse and mobile phone. Prosecution has further argued that accused was apprehended on the spot and there is sufficient evidence against the accused in the present matter to convict him for the offence punishable under section 392/411/34 IPC.
FINDINGS WITH REASONS:
11. Arguments were heard at length from both the sides and the case file has been carefully perused. Briefly stated, it is the case of the prosecution that on 18.02.2018, at about 06.10 PM, two persons caught hold of the complainant and took him to DDA Park. They pressed the neck of the complainant and robbed the complainant of his mobile phone and his purse. It is alleged that one of them i.e. the accused herein was caught on the spot by the complainant and public persons and the other was able to flee and was never arrested in the present matter.
12. Considering the allegations of the prosecution and the material available on record, the accused was charged for offences punishable under Section 392/411/34 IPC by the Ld. Predecessor of this Court vide order dated 13.07.2018. Accordingly, the accused had faced trial for offence of committing robbery of the mobile phone and purse of the complainant and recovery of the same stolen purse from him on the same day u/s 392 and 411 respectively.
13. It is a settled proposition of law that prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and convincing FIR no. 54/18 PS Madhu Vihar State vs. Akbar Page no. 9 of 15 evidence. It is also well settled that in order to prove its case, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused. The accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
14. At this stage, it is relevant to understand that the offence of robbery is defined under section 390 IPC, which is reproduced hereinafter for better understanding:-
"Robbery.--In all robbery there is either theft or extortion. When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. Explanation.--The offender is said to be present if he is suffi- ciently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint".
From the perusal of the definition of robbery, it becomes clear that robbery is said to have been committed when during the commission of theft or while carrying away the stolen property or in the attempt to carry away the stolen property, the accused causes complainant's death or hurt or wrongful restraint or causes instant fear of the same.
15. The offence of theft is defined under section 378 IPC which is reproduced hereinafter:-
FIR no. 54/18 PS Madhu Vihar State vs. Akbar Page no. 10 of 15 "S. 378. Theft--Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft".
Therefore, from perusal of the definition of theft it is clear that there must be dishonest dispossession of movable property from the complainant without his consent. The term 'dishonestly' is defined under section 24 of the IPC which states that when something is done with the intention of causing wrongful loss to one and wrongful gain to another, it is said to have been done dishonestly. Therefore, it is no doubt evident that in the offence of snatching the intention of the accused is 'dishonest' to make wrongful gain to self and loss to the victim. It is also amply clear that the offence of theft as defined under the Indian Penal Code emphasizes upon 'taking away' of property or dispossessing the complainant from the property. In the present matter it is the allegation of the complainant that the accused persons pressed the neck of the complainant and forcefully took him to the DDA park where he was threatened to give all his belongings and accordingly, his mobile phone and purse was robbed by the accused. It is also alleged that the alleged persons pushed the complainant due to which he fell on the ground.
16. To prove the guilt of the accused for the offences he is charged with in the present matter it is incumbent upon the prosecution of prove the following facts:
a) that the accused has committed the theft of the purse belonging to the complainant;
b) that the accused while committing the theft voluntarily caused hurt or wrongful restraint or fear of instant hurt or instant wrongful restraint to the complainant; and
c) accused was found in possession of the stolen property and dishonestly retained the purse in question having reason to believe the same to be stolen.
17. PW-1/ complainant stated his version of facts and proved the complaint Ex. PW-1/A and stated that accused was arrested and searched in his presence vide FIR no. 54/18 PS Madhu Vihar State vs. Akbar Page no. 11 of 15 arrest memo Ex. PW-1/B and personal search memo Ex. PW-1/C respectively. He further stated that during his personal search stolen purse was recovered vide seizure memo Ex. PW-1/D and site plan Mark-X was also prepared at his instance. The accused was identified by the complainant during his testimony in court and the case property was also identified by the complainant during his testimony. PW- 2/ HC Devender inter alia stated that he accompanied the IO upon receiving the call regarding the present matter and the accused was arrested in his presence. PW-3/IO ASI Rajpal also deposed on similar lines as PW-2 and inter alia stated that he carried out the investigation in the present case, prepared all the documents and recorded the statement of the witnesses.
18. In the present matter, the most important witness produced by the prosecution is the complainant/PW-1 who has deposed regarding the incident. The complainant/PW-1 during his testimony in court has inter alia stated that on 18.02.2018 at about 06.00 PM, he was going towards Mulla colony and was on the road when two accused persons came from behind and caught hold of him and forcibly took his purse containing Rs. 90/-, Aadhar Card and his mobile phone. He further stated that the accused was caught by public persons and he made a call on 100 number after which police had arrived.
19. It is pertinent to note herein that in his statement given to the police under section 161 Cr.P.C, the complainant had stated that on 18.02.2018, when he was going towards Joshi Colony then two accused persons came from behind and took him to the DDA park where they pressed his neck and robbed him of mobile phone and purse.
20. In the statement given to the police, the complainant had clearly stated that someone else called the police after the incident. It is the allegation of the prosecution and the complainant himself that he was robbed of his mobile phone by the accused persons whereas it is surprising to note that during his testimony in the court, he had stated that he had called to the police from his own mobile phone. During his cross-examination, the complainant further clarified that he had only one FIR no. 54/18 PS Madhu Vihar State vs. Akbar Page no. 12 of 15 mobile phone, therefore, there arises a grave suspicion as to how the complainant could have called the police using his own mobile phone when allegedly his mobile phone was already robbed by the accused persons. It is further pertinent to note that the complainant in his statement given to the police has stated that the accused persons pressed his neck whereas during his testimony in the court complainant stated that the accused did not press his neck. Therefore, there appears to be clear contradictions in the statement given by the complainant to the police and his testimony recorded in the court.
21. In the entire prosecution version, there is no explanation regarding the mobile phone of the complainant. It is stated by the complainant that his mobile phone was robbed by one accused and the other robbed him of his purse. However, no clarification has been given by either the prosecution or the complainant during the trial that the accused herein was the one who robbed him of his purse and the co-accused Bangali who has not been apprehended in the present case is the one who robbed him of his mobile phone. Further, the DD no. 46A upon which PW-2 and PW-3 reached the spot has also remained unproved on record.
22. The complainant during his testimony in the court had stated that the police officials came on the spot in a gypsy and took him and the accused to the police station where he stayed from 06.00 PM to midnight. Whereas, PW-2/HC Devender during his testimony in the court stated that upon receipt of call regarding the incident, he alongwith the IO reached at the spot on the private motorcycle of the IO and complainant did not join them at the police station after the investigation when they left the spot. Further, IO /PW-3 stated that he left the spot at about 10.30 PM and the complainant did not go to the police station with them. Perusal of the aforesaid testimonies by the witnesses in the present case are quite contrary to each other which puts aspersions of doubt over the version put forth by the prosecution.
FIR no. 54/18 PS Madhu Vihar State vs. Akbar Page no. 13 of 15
23. It is the case of the prosecution that the site plan was prepared at the instance of the complainant at the spot, whereas, perusal of the site plan reveals that the same does not carry any signature of the witness/complainant which casts a shadow of doubt upon the alleged prosecution version that the site plan was prepared at the spot by the IO in the presence and at the instance of the complainant.
24. The complainant in his statement given to the police has stated that the accused was caught at the spot and the stolen purse was recovered from him and thereafter someone from the public made a call to the police on 100 number. However, PW-3/IO in his testimony recorded in the court has stated that when he reached the spot and conducted the personal search of the accused then the purse of the complainant was found in his right pocket. He further denied the suggestion of the Ld. Counsel for the accused that the stolen purse was handed over by the complainant to the police. Therefore, perusal of the aforesaid goes on to show that the alleged recovery against the accused has not been proved by the prosecution on such scale of proof as required in cases of conviction under section 411 IPC. Further, it is pertinent to note that in the present case even though it has been alleged that there were several public persons who were present while the accused persons was arrested from the spot, however, none of the public person has been examined by the prosecution as a witness in the present matter.
25. In a case involving minor contradictions in the prosecution's version, the court may ignore the minor contradictions if there are otherwise sufficient evidence on record against the accused which prove his guilt beyond reasonable doubt. However, in the opinion of this court, in the case like the present one where there are several major contradictions regarding the prosecution version which are revealed from the testimonies of essential prosecution witnesses, the accused deserves to be acquitted.
26. From the comprehensive perusal of the entire record, it is quite apparent that prosecution has failed to prove the guilt of the accused beyond reasonable doubt.
FIR no. 54/18 PS Madhu Vihar State vs. Akbar Page no. 14 of 15 There are several major contradictions in the statement given by the complainant to the police and his testimony recorded in the court which has created suspicion over the story alleged against the accused. There are contradictions in the testimony of complainant as well as the police witnesses and when read cumulatively, the same has clearly revealed that the accused is entitled for acquittal in the present matter as the prosecution has failed to prove its version beyond reasonable doubt.
27. Therefore, in view of the above discussion, this court is of the considered opinion that the prosecution has miserably failed to prove the allegations leveled against the accused and therefore the accused is liable to be acquitted.
Accordingly, in view of the findings given above, the accused is hereby acquitted.
28. Copy of this judgment be given free of cost to the accused against receiving.
Digitally signed by BHARAT BHARAT AGGARWAL
AGGARWAL Date: 2022.04.25
18:09:12 -0300
ANNOUNCED IN OPEN COURT (Bharat Aggarwal)
Today i.e. 25.04.2022 MM-05/ SHD, Karkardooma
Courts/Delhi
Present judgment consists of 15 pages and each page bears my initials.
Digitally signed by BHARAT BHARAT AGGARWAL
AGGARWAL Date:
2022.04.25
18:09:23 -0300
(Bharat Aggarwal)
MM-05/SHD,Karkardooma
Courts/Delhi 25.04.2022
FIR no. 54/18 PS Madhu Vihar State vs. Akbar Page no. 15 of 15