Delhi District Court
State vs . Anoop And Ors. on 31 January, 2019
FIR No.937/2017
State Vs. Anoop and ors.
Police Station : Mangol Puri
IN THE COURT OF SHRI DEEPAK GARG:ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 582/2017
CNR no. : DLNW01 0091332017
State
Vs
1. Anoop
S/o Sh. Balram
R/O Y2249 Mangol Puri,
Delhi
2. Himanshu @ Hani
S/o Sh. Anil
R/O H264, Mangol Puri
Delhi
3. Vikash
S/o Sh. Raj Kumar
R/O Y1858 Mangol Puri
Delhi
FIR No. : 937/17
Police Station : Mangol Puri
Under Section : 392/397/506/411/34 Indian Penal Code
Date of Institution in Sessions Court : 11.09.2017
Date when judgment reserved : 30.01.2019
Date when judgment pronounced : 31.01.2019
Page No. 1 of 22
FIR No.937/2017
State Vs. Anoop and ors.
Police Station : Mangol Puri
JUDGMENT
1. This case was registered on the complaint of complainant Sh. Ajit who made a complaint to the police on 30.06.2017 that on that day, at about 01:00 PM, while he was going to his workplace i.e. the factory situated at Mangol Puri, Delhi on the way, he was intercepted by three boys all of a sudden who caught him from his back; he was dragged towards Khatta and on the point of knife they took away his mobile phone make Micromax and wallet; they threatened him not to tell anything to anybody and they ran away from the spot. FIR was registered on the complaint of Sh. Ajit. Investigation was carried out. Accused persons were arrested. Mobile phone and wallet of complainant and weapon of offence i.e. knife was recovered from the possession of accused Himanshu @ Honey. On completion of the investigation, chargesheet was filed in the Court.
2. On compliance of Section 207 Cr.P.C, the chargesheet was committed to this Court by the Court of Ld. MM.
3. Charge under Sections 392/506/34 IPC was framed against all the accused persons and additional charge u/s 397 and 411 IPC against accused Himanshu @ Hani was framed vide order dated 06/10/2017, to which they pleaded not guilty and Page No. 2 of 22 FIR No.937/2017 State Vs. Anoop and ors.
Police Station : Mangol Puri claimed trial.
4. In order to prove its case, the prosecution has examined in total 5 witnesses.
PUBLIC WITNESSES
5. PW3 Sh. Ajit is the complainant. His testimony shall be discussed in the later part of the judgment.
POLICE WITNESSES
6. PW1 HC Dinesh Kumar has deposed in sync with PW4 SI Sandeep Narwal with whom he remained in the investigation.
7. PW2 HC Jitender was the Duty officer who proved the copy of FIR, endorsement on rukka and certificate u/s 65B of Indian Evidence Act as Ex.PW2/A, ExPW2/B and ExPW2/C respectively.
8. PW4 SI Sandeep Narwal has deposed that on 30.06.2017, complainant Ajeet visited the PS and informed the then duty officer regarding he having been robbed off of his belongings. The then duty officer registered the information and marked the Page No. 3 of 22 FIR No.937/2017 State Vs. Anoop and ors.
Police Station : Mangol Puri same to him. In pursuance to the same, he enquired about the incident from the complainant and alongwith him went to the spot i.e. HY Block cross section, near Khatta, Mangol Puri, Delhi. He proved statement of complainant Ex. PW3/A and his endorsement on it Ex.PW4/A. He got the present case FIR registered. He proved the site plan Ex. PW4/B. Thereafter, search of the accused was conducted and accused were apprehended at the instance of complainant from D Block, Babu Park, Mangol Puri, Delhi. On inquiry their names came to be known as Himanshu @ Honey, Vikas and Anoop. In the formal search of accused Himanshu @ Honey one bag which was having purse, one mobile make Micromax and one knife used for cutting vegetables, was recovered. The belongings except knife was told by the complainant to be his and regarding knife he had told that it was the same knife which was used to robe him off. Seizure memo has been exhibited as Ex. PW1/A. Arrest memos of the accused Himanshu, Vikas and Anoop have been exhibited as Ex. PW1/B, Ex. PW1/C and Ex.PW1/D. The personal search of all the said accused persons have been exhibited as Ex. PW1/E, Ex PW1/F and Ex. PW1/G respectively. Site plan of the place of arrest of accused persons is Ex. PW4/C. Their disclosure statement have been exhibited as Ex. PW1/H, Ex. PW/I and Ex.PW1/K respectively.
Page No. 4 of 22 FIR No.937/2017Police Station : Mangol Puri
9. PW5 HC Charan Singh was the MHCM. He has proved entries no. 3681 of register no. 19 as ExPW5/A vide which the four pullandas and personal search memo of accused Anoop and Vikas, were deposited.
STATEMENT OF ACCUSED
10. After completing the prosecution evidence, statement of the accused was recorded under Section 313 Code of Criminal Procedure, in which all the incriminatory facts and circumstances appearing in evidence was put to them, which have been denied by them in toto.
11. Accused Anoop has taken defence that he is innocent and falsely implicated in this case and that he was lifted from his house late night by the police and nothing was recovered from him.
12. Accused Himanshu @ Hani has taken defence that he is innocent and falsely implicated in this case. He was picked up from his house and he was beaten seriously and taken to PS where he was falsely implicated in the present case. Nothing was recovered from him. Knife was planted upon him.
Page No. 5 of 22 FIR No.937/2017Police Station : Mangol Puri
13. Accused Vikas has taken defence that he is innocent and falsely implicated in this case. Infact he was lifted by the police from his house in the odd hours of night and falsely implicated in this case. His mother, sisters and wife also raised objections but the police official did not hear them. Nothing was recovered from him nor he ever present as alleged by the complainant.
ARGUMENTS OF BOTH SIDES
14. I have heard Sh. Rajat Kalra, Ld. Addl. PP for the State and Sh. Anil Kumar, Ld. Counsel for accused Anoop, Sh. Sanjeev Tomer, ld. Counsel for accused Himanshu @ Sunny and Sh. R.D. Sharma, Ld. Counsel for accused Vikas and I have perused the material available on record.
15. It is argued by Ld. Counsels for the defence that the prosecution has miserably failed to prove its case beyond reasonable doubt. It is argued that there are material contradictions in the statement of complainant /victim PW3 Sh. Ajit which make his presence at the spot, apprehension of accused persons and the recovery from them highly doubtful.
Page No. 6 of 22 FIR No.937/2017Police Station : Mangol Puri
16. Per contra, Ld. Addl. PP for the State has argued that the prosecution has been able to establish its case beyond any shadow of doubt. Reliance is placed on testimony of the public witness i.e. PW3 Sh. Ajit and it is contended that having regard to his testimony, whose testimony is truthful and reliable and coupled with the other evidence on record in the form of investigation conducted by the police, the prosecution has been able to prove its case.
FINDINGS OF THE COURT Ocular Evidence:
17. Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspect connected with the offence, there is no reason to reject their testimonies.
18. In the present case the entire case of the prosecution is based upon the eye witness account given by the complainant Page No. 7 of 22 FIR No.937/2017 State Vs. Anoop and ors.
Police Station : Mangol Puri Sh. Ajit (PW3) and who has proved the incident which had taken place at the spot. Here, I may observe that since the prosecution is placing its heavy reliance on the testimony of the said witness, hence it is necessary for this Court to first determine whether he has deposed is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court. It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of Page No. 8 of 22 FIR No.937/2017 State Vs. Anoop and ors.
Police Station : Mangol Puri the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978).
CONTRADICTIONS IN THE STATEMENT OF COMPLAINANT/ VICTIM
19. Complainant/victim Sh. Ajit (PW3) has deposed in court that on 30.06.2017, at about 01:00 PM, while he was going to his factory at village Mangol Pur and when he reached near Babu Park at Mangol Pur village, Delhi, he was intercepted by three boys, who caught him from his back; he was dragged to an area behind a truck parked nearby and on the point of knife, they took away his mobile phone make Micromax and his wallet which was having his Aadhar Card and some cash amount. They also threatened him not to tell anything to anybody before running away from the spot. Thereafter, he went to his factory and after that he went to PS Mangol Puri and got his complaint registered which is Ex. PW3/A. Page No. 9 of 22 FIR No.937/2017 State Vs. Anoop and ors.
Police Station : Mangol Puri
20. He further deposed that he got the accused persons apprehended from YBlock, Mangol Puri, in front of Babu Ram Park, where they were busy consuming smack in the park and after their apprehension, he came to know about their names as Himanshu @ Hunny, Vikas and Anoop and he also identified them in court as the persons who had robbed him of his belongings on the fateful day.
21. Here it is important to mention that although this witness has identified all the three accused persons as the perpetrator of crime, but there are lot of contradictions in his statement which cannot be ignored and which are very relevant to considered by the court:
(i) As per the case of the prosecution the phone and the wallet of the complainant were recovered from the bag which was recovered from the possession of accused Himanshu @ Honey, in the presence of the complainant but the complainant Sh.Ajit (PW3) has denied the same and has deposed that his phone was recovered from the possession of accused Vikas and his wallet was recovered from the possession of accused Anoop.
(ii) In the cross examination by the State, this witness denied the suggestion of the State that he had wrongly stated in his examination in chief that his phone was Page No. 10 of 22 FIR No.937/2017 State Vs. Anoop and ors.
Police Station : Mangol Puri recovered from the possession of accused Vikas and his wallet was recovered from the possession of accused Anoop. He further denied the suggestion of the State that the said articles were recovered from the possession of accused Himanshu @ Honey.
(iii) As per the case of prosecution the bag recovered from the possession of accused Himanshu @ Honey was of red colour but this witness said that it was of black colour.
(iv) As per the case of prosecution, mobile phone, wallet of complainant and a knife was recovered from the bag which was recovered from the possession of accused Himanshu @ Honey but this witness in his cross examination by the State stated that only one knife was recovered from the said bag.
(v) When the said knife brought by the MHCM was shown to the witness, he failed to identify the same and denied the suggestion of the State that it was the same knife on the point of which, he was robbed by the assailants.
(vi) In the cross examination by the State, this witness admitted that police recorded his statement on 1/7/2017 i.e. on the next day of the incident whereas as per the tehrir ExPW3/A it was recorded on 30/6/2017 itself at about 7:55 p.m.
(vii) As per the case of the prosecution, the accused persons were apprehended at about 12:00 a.m. midnight during the Page No. 11 of 22 FIR No.937/2017 State Vs. Anoop and ors.
Police Station : Mangol Puri intervening night of 30/6/2017 and 1/7/2017 whereas Sh. Ajit in his cross examination by the State has deposed that he had got the accused persons apprehended on the same day at about 7008:00 p.m.
(viii) As per the case of the prosecution it was accused Himanshu @ Honey who had used knife in the commission of the offence but in the cross examination by the State, this witness denied the said fact that it was Himanshu @ Honey who had used the knife and he took the stand that it was accused Vikas who had shown him the knife.
22. When the contradictions are material in nature, it has been held in Tehsildar Singh vs. State of UP AIR 1959 SC 1012 :
Moreover, looking at the ambiguous narration of sequences described by the witnesses, the chain of events in the case cannot be said to have been properly brought on record by the prosecution. It is always the duty of the Court to separate chaff from the husk and to dredge the truth from the pandemonium of Statements. It is but natural for human beings so state variant statements due to time gap but if such statements go to defeat the core of the prosecution then such contradictions are material and the Court has to be mindful of such statements.
23. In the present case, in my view, the contradictions Page No. 12 of 22 FIR No.937/2017 State Vs. Anoop and ors.
Police Station : Mangol Puri mentioned above, in the testimony of the complainant/victim, are vital in nature and it goes to the root of the matter and there is nothing on record to explain about the same and hence this witness does not appear to be very reliable, dependable and trustworthy, whose testimony can be used to convict the accused persons.
NON JOINING OF PUBLIC WITNESSES
24. In view of the abovesaid contradictions in the statement of complainant/victim, the court wanted some other reliable evidence on record in the form of testimony of some public witness to corroborate the case of the prosecution regarding the sequence of apprehension of accused persons and recovery effected but it is relevant to note that in the present case, there is no independent witness produced by the prosecution in support of its version of the manner of apprehension of accused persons. All the accused persons namely, Anoop, Himanshu @ Honey and Vikas were apprehended at about 12:00 a.m. (midnight) from Bapu Park, Mangol Puri, Delhi and it is admitted by PW3 Sh. Ajit and PW4 SI Sandeep Narwal that there were 1520 persons present in the park in different groups at the relevant time, the raiding party was unable to join even one public witness in its proceedings. It appears that the investigating agency did not Page No. 13 of 22 FIR No.937/2017 State Vs. Anoop and ors.
Police Station : Mangol Puri make any sincere effort to join any public witness in the said proceeding. In cross examination PW4 SI Sandeep Narwal has deposed that he had asked certain public persons to join the proceedings but they did not come forward. He further admitted that he did not give any notice to any of the public person and he did not note their names. In case titled as Ritesh Chakarvarty vs. State of Madhya Pradesh 2006 (3) JCC (Narcotics) 150, the Hon'ble Supreme Court has deprecated the practice of the investigating officials in not enquiring the names of the public persons who failed to join the proceedings on the request of the police officials . In two other judgments pronounced in the cases titled as Anup Joshi vs. State 1992 (2) CC cases 314 and Roop Chand vs. State of Haryana 1991 (1) CLR 69, it has been observed by Hon'ble High Court that failure to proceed against the public person who refused to join the investigation, is suggestive of the fact that the explanation for non joining of witnesses from the public is an after thought and is not worthy of credence. In the absence of any satisfactory and reliable reason forthcoming from the prosecution as to why the public persons were not included in the proceeding even after the apprehension of the accused persons, the case of the prosecution has become doubtful.
Page No. 14 of 22 FIR No.937/2017Police Station : Mangol Puri
25. Now, in view of the serious contradictions in the statement of complainant/victim and in the absence of any independent public witness to the alleged arrest and seizure proceedings, it is to be examined whether the accused can be held guilty only on the basis of the deposition of the police officials. No doubt as contented by Ld. Addl. PP for the State, the testimony of the police officials cannot be treated with suspicion only because no public witnesses were joined in the investigation. As pointed out by Ld. Addl. PP, ordinarily the public at large shows their disinclination to come forward to become witnesses and even in the absence of independent witnesses, the court can, on the sole testimony of police officials believed the prosecution case to be true. However, Hon'ble Apex Court has also made it clear that if a court has any good reason to suspect the truthfulness of the prosecution witnesses, the court can certainly take into account the fact that no other independent person was present at the time of recovery and that therefore an accused cannot be held guilty only on the basis of such evidence produced by the prosecution. In the present case, as stated above, there are a number of contradictions in the statement of complainant/victim, which go to the root of the matter and make the case of the prosecution highly doubtful to have taken place in the manner as narrated in the charge sheet.
Page No. 15 of 22 FIR No.937/2017Police Station : Mangol Puri DELAY IN REGISTRATION OF FIR AND BEHAVIOUR OF COMPLAINANT
26. It is contended by Ld. Counsels for the defence that complainant had gone to PS on the fateful day at about 1:30 p.m. but he did not get his statement recorded at that moment and after about five hours, he again went to the PS and then on his statement FIR was registered and this delay in the registration of FIR creates doubt. Per contra, Addl. PP for the State has contended that complainant/victim may be under shock immediately after the incident and that is why he may be needing time to get his statement recorded and nothing suspicious/doubtful should be read in such situation. It is admitted by the IO SI Sandeep Narwal (PW4) that on the fateful day at about 1:30 p.m., complainant met him and told him about the incident and verbally told him that he had to go to his factory and on his return he would make statement and subsequently he again came back at the PS at about 6:30 p.m. and at that time his statement was recorded. There is no satisfactory explanation as to why the complainant did not make his complaint to the police inspite of his visit to the PS immediately after the incident at about 1:30 p.m. and preferred to go to his factory, before returning back to the PS to make his statement.
Page No. 16 of 22 FIR No.937/2017Police Station : Mangol Puri
27. It is also relevant here to state that complainant/victim Sh. Ajit (PW3) has admitted in his cross examination that after going to the factory he did not tell anyone in the factory about the incident which occurred with him. In my view, this behaviour of the complainant in not telling anyone in the factory or any of his friend about the incident in question, which was not a small incident, is worth consideration.
NON CONDUCTING OF TIP OF ACCUSED PERSONS
28. It is settled law that the purpose of Test Identification Parade is to test and strengthen trustworthiness of the substantive evidence of the witness in court. It is for this reason that TIP is held under the supervision of a Magistrate to eliminate any suspicion or unfairness and to reduce the chances of testimonial error as Magistrate is expected to take all possible precautions. In the present case, admittedly, TIP of the accused persons was not conducted. It has been held by Hon''ble Supreme Court in Mulla Vs. State of UP AIR 2010 SC 942 that where identification of an accused by a witness is made for the first time in court, it should not form the basis of the conviction. The ratio of the said case fully applies to the present case. The investigating agency cannot conveniently hop over the stage of Page No. 17 of 22 FIR No.937/2017 State Vs. Anoop and ors.
Police Station : Mangol Puri TIP only by saying that it was not required as the accused was arrested at the instance of the complainant/victim.
PREPARATION OF DOCUMENTS AT THE SPOT DOUBTFUL
29. As per the case of prosecution, when the accused persons were apprehended in the park, all the documents relating to their apprehension and recovery from accused Himanshu @ Honey were prepared at the spot. However, PW3 Sh. Ajit has deposed that the accused persons were immediately brought to the PS after their apprehension and on the next day he was called at the PS where his signatures were taken on certain documents. As per the arrest memo of the accused persons, they were arrested between 12:20 a.m. to 12:30 a.m. on 1/7/2017 and complainant Ajit is shown as one of the witness to the said arrest. His signature on the arrest memos of the accused, which he put on the next day, make the said documents doubtful.
USE OF WEAPON BY ACCUSED HIMANSHU @ HONEY NOT PROVED
30. As stated above, as per the case of the prosecution, it was accused Himanshu @ Honey who had used knife in the commission of the offence but in the cross examination by the Page No. 18 of 22 FIR No.937/2017 State Vs. Anoop and ors.
Police Station : Mangol Puri State, complainant/victim PW3 Sh. Ajit has denied the said fact that it was Himanshu @ Honey who had used the knife in the commission of the offence and he took the stand that it was accused Vikas who had shown him the knife. Hence, prosecution has failed to prove the offence u/s 397 against accused Himanshu @ Honey.
FAILURE OF COMPLAINANT TO IDENTIFY THE KNIFE
31. As per the case of prosecution, the knife which was allegedly used in the commission of offence in question was recovered from the possession of accused Himanshu @ Honey however, when this knife was shown to the complainant/victim Ajit (PW3), he failed to identify the same and rather he denied the suggestion that it was the same knife which was used in the commission of the offence.
IDENTITY OF MOBILE PHONE OF COMPLAINANT NOT PROVED
32. As per the case of the prosecution, complainant/victim Sh. Ajit was robbed of his mobile phone and wallet but the said complainant Sh. Ajit at the time of his examination in court as PW3 did not produce the said mobile phone in court and he stated that he did not have the mobile phone with him at that Page No. 19 of 22 FIR No.937/2017 State Vs. Anoop and ors.
Police Station : Mangol Puri time. The photograph of the mobile phone has been proved as ExPW3/C and the bill of the phone as ExPW3/D but the fact remains that the mobile phone in question was not produced before the court and there remains doubt about it.
CONCLUSION
33. In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established; The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
The circumstances should be of conclusive nature and tendency; They should exclude every possible hypothesis except the one to be proved; and There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
34. The testimony of the complainant/victim, as discussed above, is full of inconsistencies and contradictions and does Page No. 20 of 22 FIR No.937/2017 State Vs. Anoop and ors.
Police Station : Mangol Puri not inspire the confidence of the court put forward by the prosecution. The version given by the complainant/victim does not find any corroboration from any independent source.
35. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination and fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. It is settled law that the burden of proof in a criminal trial never shifts and it is always on the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. It has been so held in Paramjeet Singh vs. State of Uttrakhand AIR 2011 Supreme Court 200.
36. In case titled Sohan and Another Vs. State of Haryana and Another (2001) 3 SCC 620 it has been observed by Hon'ble Supreme Court that :
"An accused is presumed to be innocent until he is found guilty. The burden of proof that he is guilty, is on the prosecution and that the prosecution has to establish its case beyond all reasonable doubts. In other words, the innocence of an accused can be dispelled by the prosecution only on establishing his Page No. 21 of 22 FIR No.937/2017 State Vs. Anoop and ors.
Police Station : Mangol Puri guilt beyond all reasonable doubts on the basis of evidence".
37. In view of the above discussion, in the opinion of this court, the accused persons who are in JC since 01/07/2017 are entitled to benefit of doubt and it can be said that the prosecution has failed to prove its case beyond reasonable doubt and hence, the accused persons are acquitted for the offence u/s 392/506/34 IPC. Accused Himanshu @ Honey was charged additionally for the offence u/s 397 IPC and 411 IPC and he is acquitted from the said offences as well.
38. The accused persons are directed to furnish personal bond in the sum of Rs.10,000/ with one surety each in the like amount u/s 437A CrPC. Same are furnished and accepted.
39. The case property, if any, is confiscated to the state and the same may be destroyed after the period of appeal and if appeal is preferred, subject to the order of Ld. Appellate court.
40. File be consigned to record room, after due compliance.
Digitally signed by DEEPAK DEEPAK Announced in the open court GARG GARG Date: 2019.01.31
on this 31st day of January, 2019. 16:07:30 +0530 (DEEPAK GARG) ASJII, NORTHWEST ROHINI: DELHI Page No. 22 of 22