Delhi District Court
State vs . Surender Singh @ Sunder on 19 September, 2014
IN THE COURT OF METROPOLITAN MAGISTRATE-05
(SOUTH-WEST), DWARKA COURTS, NEW DELHI
Presided by: Ms. Manika
State vs. Surender Singh @ Sunder
FIR No. 437/13
Police Station : Dwarka North
Under Section : 394/34 IPC.
Unique Case ID Number: 02405R0095292014
Date of institution : 15.04.2014
Date of reserving : Oral
Date of pronouncement: 19.09.2014
JUDGMENT
a) Serial number of the case : 304/6/14
b) Date of commission of : 09.12.2013
offence
c) Name of the complainant : Sh. Malvinder Singh,
S/o Sh. Kuldeep Singh,
R/o Plot no. 15, New Rastriya
Apartment, Sector 18 A, Dwarka,
New Delhi.
d) Name, parentage and : 1. Surender Singh @ Sunder,
address of the accused S/o Sh. Suresh Singh,
R/o H. No. 204/13, Jag Jiwan
Niwas, Ragar Pura, Karol Bagh,
New Delhi.
2. Subhash S/o Sh. Parveen,
R/o H. No. 5390, Gali no. 69,
Regarpura, Karol Bagh,
New Delhi.
State v. Surender Singh @ Sunder and others
FIR No. 437/2013 P.S.: Dwarka North Page 1 of 10
3. Aladin @ Liplip,
S/o Sh. Ismail,
R/o House no. 5394/70,
Ragar Purra, Karol Bagh,
New Delhi.
e) Offence complained of : 394/34 IPC.
f) Plea of the accused : Accused Surender @ Sunder,
Accused Alladin @ Liplip and
accused Subhash (JCL) pleaded
not guilty.
g) Final order : Accused Surender @ Sunder
and Alladin @ Liplip acquitted of
offence punishable U/s 394/34
IPC.
Accused Subhash was declared
a juvenile vide order dated
25.08.2014.
h) Date of final order : 19.09.2014
BRIEF STATEMENT OF FACTS AND REASONS FOR THE
DECISION
1. Vide this judgment, the accused persons namely Surender @ Sunder and Alladin @ Liplip are being acquitted of the offence punishable under Section 394/34 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.') in the instant case FIR No. 437/2013 Police Station Dwarka North for the reasons mentioned below.
CASE OF PROSECUTION
2. Briefly stated, the case of the prosecution is that on 09.12.2013 at about 01.30 AM near Kargil Chowk, Sector-18, Dwarka, New Delhi State v. Surender Singh @ Sunder and others FIR No. 437/2013 P.S.: Dwarka North Page 2 of 10 within the jurisdiction of police station Dwarka North the accused Surender @ Sunder, Alladin @ Liplip and Subhash along with their associate Sachin (JCL), in furtherance of their common intention, committed robbery of Rs.10,000/-, Citi Bank/Axis Bank ATM Card, PAN Card, Voter ID Card, Mobile Phone Samsung Galaxy Duos having vodafone SIM no. 9899944996 and 9654492860, two gold rings and one coat belonging to the complainant and, while committing the said robbery, gave beatings to the complainant Sh. Malvinder Singh. FIR was registered on the statement of complainant Sh. Malvinder Singh. As per the prosecution, on 02.02.2014, an information regarding arrest of accused Surender @ Sunder and Alladin @ Liplip in case FIR no. 115/14, PS Vasant Kunj, U/s 302/307/395/412/462/34 IPC was received at PS Dwarka North vide DD no. 41 B. On 07.02.2014, information regarding recovery of debit card (stolen property of the present case) in case FIR no. 27/14, PS Mandir Marg, U/s 379/482 IPC from accused Surender @ Sunder was received at police station Dwarka North vide DD no. 55 B. The accused persons were arrested in the present case after due permission of the court. An application for TIP of the accused persons was moved, however, all the accused persons refused to participate in the TIP proceedings. After completion of investigation, police report was filed in the Court.
ACCUSATION AGAINST THE ACCUSED PERSONS
3. Vide order dated 26.05.2014, charge for the offence punishable under Section 394/34 IPC was framed against the accused persons namely Surender @ Sunder, Alladin @ Liplip and Subash to which they State v. Surender Singh @ Sunder and others FIR No. 437/2013 P.S.: Dwarka North Page 3 of 10 pleaded not guilty and claimed trial.
COURT PROCEEDINGS
4. An application for sending the case to Juvenile Justice Board for further trial/inquiry under Section 7 A of the Juvenile Justice (Care and Protection) Act was filed on behalf of accused Subash on 11.07.2014. Vide order dated 25.08.2014, the accused Subhash was found to be a juvenile for the purpose of the Juvenile Justice (Care and Protection of Children) Act and was directed to be produced before the learned Juvenile Justice Board.
EVIDENCE OF THE PROSECUTION
5. The prosecution has only examined four witnesses. PW-1 Sh. Ram Dev Bhagat is an employee of the petrol pump where the accused persons had allegedly handed over the credit card, robbed from the complainant, for payment in respect of the diesel filled in their car. PW-2 Sh. Malvinder Singh is the complainant in the present case. PW-3 Sh. Balbir Sharma is the Ahlmad in the court of Sh. Sujit Saurabh, learned Metropolitan Magistrate-04, Patiala House Courts, New Delhi who had produced the case file of case FIR no. 27/14 PS Mandir Marg in the court. PW-4 Sh. Jai Parkash is the complainant in case FIR no. 27/14, PS Mandir Marg, New Delhi.
6. PW-1 Sh. Ram Dev Bhagat deposed that he is working at Shankar Automobiles, Indian Oil Petrol Pump. He further deposed that on 18.01.2014, at about 10.50 pm, one white colour car having black roof came to the aforesaid petrol pump and the driver of the said car State v. Surender Singh @ Sunder and others FIR No. 437/2013 P.S.: Dwarka North Page 4 of 10 got diesel worth Rs.1,000/- filled in the car. He further deposed that 4-5 persons were sitting in the said car. He deposed that after Sh. Jai Parkash, an employee of the petrol pump, had filled petrol in the said car, he (PW-1) asked the driver of the car as to whether they would make the payment by cash or credit card. He further deposed that the driver of the car gave him a credit card and when he swapped the credit card, the payment could not be received and he accordingly informed the driver of the car who asked him to swap the card again and in the meantime, the car fled away from the spot and the credit card remained with PW-1 Sh. Ram Dev Bhagat. He further deposed that he had handed over the credit card to the investigating officer who seized the same. He could not, however, identify the credit card bearing no. 5327020229496271 tagged in the judicial file of case FIR no. 27/14 Police Station Mandir Marg produced by PW-2 as that which had been handed over by him to the investigating officer of case FIR no. 27/14 Police Station Mandir Marg. He stated that he cannot identify the assailants who had come to buy diesel from the petrol pump as they had opened the window glass of the car only slightly and he had not seen them properly. PW-1 was cross-examined at length by the learned Assistant Public Prosecutor for the State as he had resiled from his previous statement. However, despite cross-examination by learned Assistant Public Prosecutor for the State, he did not support the prosecution version. He denied the suggestion that he had not told the investigating officer in his statement that he had not properly seen the persons sitting in the car in question as they had only slightly opened the window of the car. Despite the accused persons having been State v. Surender Singh @ Sunder and others FIR No. 437/2013 P.S.: Dwarka North Page 5 of 10 shown to him during cross-examination by learned Assistant Public Prosecutor for the State, he could not identify the accused persons as the persons who had come to buy diesel from his petrol pump.
7. PW-2 Sh. Malvinder Singh is the complainant in the present case. He deposed that on 08-09.12.2013 at about 1-1.30 am, while he was coming from Dwarka Sector-4 after attending a marriage and had reached near nala after crossing the red light of Sector-11, one swift car bearing no. DL CX 1531 came to him and four persons got down from the said car, showed a paper to him and asked him for directions to the address. He further deposed that when he saw the paper, he found that it was blank. He deposed that thereafter, those boys immediately gave beatings to him and snatched his purse containing his driving license, Voter ID Card, PAN Card, ATM Card of Axis Bank and the Citi Bank and Rs.10,000/- in cash from his pocket. He further deposed that thereafter, the assailants left in their car leaving him behind. He stated that he picked up a stone and threw it on the back of their car due to which the glass of the car broke. He further deposed that on this the assailants stopped their car and those four boys got down from the car and gave him beatings with fist blows and belt and the snatched his two gold rings from his finger, his mobile phone make Samsung Galaxy Y Duos having SIM nos. 9899944996 and 9654492860 as well as his coat. He deposed that thereafter, they fled away from the spot. He further deposed that he somehow reached his house and made call at 100 number whereafter police took him to Ayushman Hospital where he was medically treated. He further deposed that the investigating officer recorded his statement Ex. PW State v. Surender Singh @ Sunder and others FIR No. 437/2013 P.S.: Dwarka North Page 6 of 10 2/A and prepared site plan at his instance. He, however, stated that due to lapse of time, he cannot identify the offenders. He was also cross- examined at length by the learned Assistant Public Prosecutor for the State as he had resiled from his previous statement. However, despite cross-examination by learned Assistant Public Prosecutor for the State, he did not support the prosecution version as regards the identity of the accused persons. Despite the accused persons, namely, Surender @ Sunder and Alladin @ Liplip having been shown to him during his cross-examination by the learned Assistant Public Prosecutor for the State, PW-2 could not identify them as the assailants. He denied the suggestion that he is intentionally not identifying the accused persons due to fear.
8. PW-3 Sh. Balbir Sharma produced the judicial file of case FIR no. 27/14, police station Mandir Marg which contained the original Axis Bank credit card bearing no. 5327020229496271 i.e. stolen property of the present case.
9. PW-4 Sh. Jai Parkash is the complainant in the case FIR no. 27/14 PS Mandir Marg. He deposed that he has been working at Indian Oil Petrol Pump, Gol Market, New Delhi since 2013. He further deposed that on 18.01.2014, at about 10.30 pm, one swift car came at the petrol pump and when he asked the occupants of the car ''kitna dalna hai'', one person opened the window of the car slightly and told him ''ek hazar ka daal de''. He deposed that while he was refilling the diesel, he called the cashier to collect the payment and when the cashier came there, he got busy in refilling the petrol in another car. He State v. Surender Singh @ Sunder and others FIR No. 437/2013 P.S.: Dwarka North Page 7 of 10 further deposed that he had not seen the faces of any of the occupants of the car. He was cross-examined at length by the learned Assistant Public Prosecutor for the State as he had resiled from his previous statement. However, despite cross-examination by learned Assistant Public Prosecutor for the State, he did not support the prosecution version as regards the identity of the accused persons. Despite the accused persons, namely, Surender @ Sunder and Alladin @ Liplip having been shown to him during his cross-examination by the learned Assistant Public Prosecutor for the State, PW-4 could not identify them as the assailants.
10. Prosecution evidence has been closed vide detailed order of even date. Examination of the accused persons under Section 313 Cr.P.C. has been dispensed with as there is no incriminating evidence against the accused persons.
ANALYSIS AND FINDINGS
11. The record has been carefully and thoroughly perused. The submissions of Sh. Brijesh Kumar, learned Assistant Public Prosecutor for State, Sh. L. S. Gautam, learned legal aid counsel for accused Surender @ Sunder and Sh. Himanshu Kumar, learned counsel for accused Alladin @ Liplip, have been heard and considered.
12. Perusal of record reveals that the only material against the accused persons is their disclosure statements, the fact that they had refused to participate in the TIP proceedings, the fact that they had been identified by the complainant before the investigating officer as being the offenders and the fact that the credit card bearing no. State v. Surender Singh @ Sunder and others FIR No. 437/2013 P.S.: Dwarka North Page 8 of 10 5327020229496271 i.e. robbed article of the present case was used by them in the offence reported vide FIR no. 27/14, PS Mandir Marg, New Delhi. It is needless to state that the alleged disclosure statements of the accused persons are inadmissible in evidence having been made before a police officer while in his custody. Further, the complainant PW-2 had failed to identify the accused persons Surender @ Sunder and Alladin @ Liplip as the offenders despite cross-examination on behalf of the State. So far as use of the credit card bearing no. 5327020229496271 by the accused persons during commission of the offence reported vide FIR no. 27/14 PS Mandir Marg is concerned, the complainant in the said case i.e. PW 4 Sh. Jai Parkash and PW-1 Sh. Ram Dev Bhagat could not identify the accused persons as the persons who had used the said credit card at their Petrol Pump despite cross-examination by learned Assistant Public Prosecutor for the State. Further PW-1 could not even identify the credit card bearing No. 5327020229496271 as that which had been handed over by him to the investigating officer. In light of the fact that during his examination in court, the material witness cited by the prosecution i.e. PW-2 Sh. Malvinder (complainant) failed to identify the accused persons as the assailants and PW-1 Sh. Ram Dev Bhagat and PW-4 Sh. Jai Parkash (complainant in case FIR no. 27/14 PS Mandir Marg) failed to identify the accused persons Surender @ Sunder and Alladin @ Liplip as the persons who had used the credit card bearing no. 5327020229496271 at their petrol pump, during their examination in the court, the fact that the accused persons had refused to participate in a test identification parade is also of no significance.
State v. Surender Singh @ Sunder and others FIR No. 437/2013 P.S.: Dwarka North Page 9 of 10
13. In view of the fact that the only eye-witnesses/material witnesses to the alleged offence cited or examined by the prosecution have resiled from their previous statements and have failed to identify the accused persons as the offenders and there is no other material on record against the accused persons Surender @ Sunder and Alladin @ Liplip to connect them to the alleged offence, the prosecution has clearly failed to prove the charge against accused persons, namely, Surender @ Sunder and Alladin @ Liplip.
14. In these circumstances, in the considered opinion of this Court, the prosecution has miserably failed to prove its case against the accused persons Surender @ Sunder and Alladin @ Liplip. Accordingly, the accused persons, namely, Surender @ Sunder and Alladin @ Liplip are acquitted of the offence punishable under Section 394/34 IPC.
15. File be consigned to Record Room.
Announced in open Court on 19.09.2014 (MANIKA) Metropolitan Magistrate-05 (South-West), Dwarka Courts, New Delhi 19.09.2014 State v. Surender Singh @ Sunder and others FIR No. 437/2013 P.S.: Dwarka North Page 10 of 10