Delhi District Court
State vs Annu Sharma@Rohit on 5 August, 2023
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
SC No. : 316/2022
FIR No. : 156/2022
Under Section : 392/397/411/34 IPC
PS : Nabi Karim
CNR No. : DLCT01-007966-2022
State Versus 1. Annu Sharma @ Rohit
S/o Sh. Roop Kishore Sharma
R/o 1352, Katra Jamaluddin
Sangathrasan, Pahar Ganj, Delhi
2. Vipin @ Monty @ Gorilla
S/o Sh. Sudesh
R/o H. No. 9735, Gali No. 8
Multani Dhanda, Pahar Ganj
Delhi
Date of Institution : 20.05.2022
Date of Arguments : 05.08.2023
Date of Judgment : 05.08.2023
JUDGMENT
INTRODUCTION:
1. The case of the prosecution is that on 26.02.2022 at about 11.30 p.m. on Pahar Ganj Flyover, near New Delhi Railway Station, Delhi, within jurisdiction of PS Nabi Karim, the accused persons, in furtherance of their common intention, robbed mobile phone from Mr. Nikhil Dhondiyal (Hereinafter, 'the complainant') while he was travelling in an auto-rickshaw No. DL 1RU 2572 driven by the accused, namely, Annu Sharma @ Rohit. Thus, the accused persons are prosecuted for offence under Section 392 read with Section 34 of 'The Indian Penal Code, 1860' (In short 'IPC').
2. The accused, namely, Vipin @ Monty @ Gorilla used a deadly weapon i.e. surgical blade at the time of committing robbery. Thus, he is prosecuted for committing offence under Section 397 IPC.
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3. It is further case of the prosecution that on 28.02.2022 at about 02.30 p.m. at Chitragupta Road, near R.K. Ashram Metro Station, Delhi, robbed mobile phone was recovered from the accused, namely, Annu Sharma @ Rohit.
Thus, he is prosecuted for an offence under Section 411 IPC. CHARGE-SHEET:
4. The case of the prosecution, as unfolded in the statement of the complainant Ex.PW1/A, is that on 26.02.2022 at about 09.30 p.m., he alongwith his friends had gone to My Bar at Main Bazar, Pahar Ganj, Delhi to drink alcohol. At about 11.15 p.m., he left My Bar in inebriated condition. After walking some distance, he hired an auto to reach his house in Laxmi Nagar.
Besides an auto driver, a boy was sitting on rear seat of the said auto. He also sat with him on the rear seat. At about 11.30 p.m., when the said auto reached on Pahar Ganj Bridge, suddenly the boy sitting on the rear seat shown him a blade and forcibly taken out his mobile phone from his pocket. When he protested, he slapped him. They de-boarded him and ran away from there. He made call to his brother from mobile phone of a motorcycle rider. DD NO. 4A DATED 27.02.2022:
5. On 27.02.2022 at 02:27:51 hrs., PW-4 ASI Umed Singh, Duty Officer, PS Nabi Karim received a PCR call that 'caller informed from mobile No. 8447153596 that his son informed him that when he was coming to his house in an auto rickshaw, two boys in the said auto rickshaw robbed his mobile phone and purse on Paharganj Flyover by showing a knife', vide DD No. 4A Ex.PW4/A. He assigned DD No. 4A Ex.PW4/A to PW-9 ASI Arun Kumar for appropriate action.
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6. On receipt of DD No. 4A Ex.PW4/A, PW-9 ASI Arum Kumar reached at Paharganj Bridge, near New Delhi Railway Station where he did not find the complainant. He contacted the caller on his mobile phone who informed that the complainant did not reach home and he kept the said DD pending. REGISTRATION OF FIR:
7. On 27.02.2022 at about 10.00 p.m., the complainant reached PS Nabi Karim. PW-9 ASI Arun Kumar recorded his statement Ex.PW1/A. He made endorsement Ex.PW9/A for registration of case under Section 392/397/34 IPC.
8. On 27.02.2022 at about 10.13 p.m., PW-10 ASI Ramesh Kumar, Duty Officer, PS Nabi Karim recorded FIR No. 156/2022 under Section 392/397/34 IPC Ex.PW10/A. He assigned further investigation to PW-9 ASI Arun Kumar. INVESTIGATION:
9. During investigation, PW-9 ASI Arun Kumar alongwith the complainant reached at the place of incident. He prepared site plan of the place of incident Ex.PW1/B at his instance. He recorded statement of the witnesses.
10. On 28.02.2022, PW-9 ASI Arun Kumar alongwith the complainant, PW-7 Ct. Mukesh Kumar and PW-8 Ct. Sanjay, on receipt of secret information, reached at R.K. Ashram Metro Station and apprehended the accused, namely, Annu Sharma @ Rohit alongwith TSR No. DL IRU 2572. He conducted his search and recovered robbed mobile phone Ex.MO1 from right pocket of his trousers. He seized TSR No. DL IRU 2572, vide seizure memo Ex.PW1/C. He seized robbed mobile phone, vide seizure memo Ex.PW1/D. He arrested him, vide arrest memo Ex.PW1/E. He recorded his disclosure statement Ex.PW1/G. FIR No. 156/2022 State vs. Annu Sharma @ Rohit & Anr. Page No. 3 of 18
11. Pursuant to disclosure statement Ex.PW1/G, the accused, namely, Annu Sharma @ Rohit led PW-9 ASI Arun Kumar alongwith the complainant, PW-7 Ct. Mukesh Kumar and PW-8 Ct. Sanjay to Gali No. 8, Multani Dhanda, Pahar Ganj, Delhi where they apprehended the accused, namely, Vipin @ Monty @ Gorilla. He searched him. He recovered one surgical blade having '21' engraved thereon from right pocket of his trousers. He prepared sketch of the said surgical blade Ex.PW1/I. He kept the said surgical blade in a match box and kept it in a white cloth and sealed the cloth parcel with his seal having impression 'AK' and seized it, vide seizure memo Ex.PW1/H. He arrested him, vide arrest memo Ex.PW1/J. He prepared pointing out memo of the place of incident, vide memo Ex.PW1/M. He deposited the case exhibits in police malkhana, vide Sl. No. 2095 in Reg. No. Ex.PW6/A. SUBMISSION OF CHARGE-SHEET:
12. On conclusion of investigation, PW-9 ASI Arun Kumar charge-sheeted the accused persons for offences under Section 392/397/411/34 IPC.
COMMITTAL PROCEEDINGS:
13. Vide order dated 13.05.2022, the jurisdictional Magistrate committed the case to the Court of Session. CHARGE:
14. Vide order dated 28.07.2022, the accused persons were charged for committing offence under Section 392/34. The accused, namely, Annu Sharma @ Rohit was charged for offence under Section 411 IPC. The accused, namely, Vipin @ Monty @ Gorilla was charged for committing offence under Section 397 IPC. The accused persons pleaded not guilty and claimed trial.
FIR No. 156/2022 State vs. Annu Sharma @ Rohit & Anr. Page No. 4 of 18 PROSECUTION EVIDENCE:
15. The prosecution examined 10 witnesses, as under:
The witnesses Description of the witnesses PW-1 Nikhil Dhondiyal The complainant PW-2 Mohd. Naved Previous owner of TSR No. DL 1RU 2572 PW-3 Girish Kumar Owner of TSR No. DL 1RU 2572 PW-4 ASI Umed Singh DD writer, PS Nabi Karim PW-5 HC Sunil Taken rukka to the place of incident PW-6 ASI Mohinder Pal MHC (M), PS Nabi Karim PW-7 HC Mukesh Kumar Arrest and recovery witness PW-8 Ct. Sanjay Arrest and recovery witness PW-9 SI Arun Kumar Investigating Officer PW-10 SI Ramesh Kumar Duty Officer, PS Nabi Karim EXAMINATION OF THE ACCUSED PERSONS:
16. Incriminating circumstances appearing in evidence were explained to the accused persons, as required under section 313 Cr.P.C. They denied each and every circumstance appearing in evidence against them. They stated that they were lifted from their house. They stated that no recovery was effected from them.
They pleaded innocence and claimed false implication. APPEARANCE:
17. I have heard arguments of Mr. Ashesh Kumar, Ld. Addl. PP for the State and Mr. Manish Garg, Advocate for the accused persons and examined the evidence, oral and documentary.
CONTENTIONS OF THE PROSECUTION:
18. Ld. Addl. PP for the State contended that the complainant deposed the entire incident. He contended that though the complainant did not identify the accused persons, however, the recovery of robbed mobile phone and surgical blade were effected from the accused persons soon after the incident.
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19. Ld. Addl. PP for the State contended that the complainant identified his signatures on statement Ex.PW1/A, site plan Ex.PW1/B, seizure memo of TSR Ex.PW1/C, seizure memo of mobile phone Ex.PW1/D, arrest memos Ex.PW1/E and Ex.PW1/J, seizure memo and sketch of surgical blade Ex.PW1/H and Ex.PW1/I respectively. He contended that PW-3 Girish Kumar, Proprietor of M/s. Amba Motors proved that the accused, namely, Annu Sharma @ Rohit was driving TSR No. DL 1RU 2572. He contended that the complainant identified robbed mobile phone Ex.MO1. He contended that Section 114
(a) of 'The Indian Evidence Act' provides that the Court may presume that a person who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. He contended that a surgical blade was recovered from the accused, namely, Vipin @ Monty @ Gorilla and this is a relevant fact under Section 8 of 'The Indian Evidence Act'. He contended that the accused persons failed to account for possession of stolen mobile phone and the said blade. He contended that PW-9 ASI Arun Kumar, PW-7 Ct. Mukesh Kumar and PW-8 Ct. Sanjay proved apprehension of the accused persons and recovery of stolen mobile phone and surgical blade from them. He contended that PW-9 ASI Arun Kumar, PW-7 Ct.
Mukesh Kumar and PW-8 Ct. Sanjay identified mobile phone in photographs Ex.PW7/1 and Ex.PW7/2 and surgical blade Ex.MO1. He contended that evidence of police officials cannot be doubted in the absence of any enmity or malice on their part. He contended that the prosecution proved charges against the accused persons.
FIR No. 156/2022 State vs. Annu Sharma @ Rohit & Anr. Page No. 6 of 18 CONTENTIONS OF THE DEFENCE:
20. Ld. Defence Counsel contended that the complainant has not identified the accused persons. He contended that the recovery of mobile phone and surgical blade were not effected from the accused persons. He contended that the complainant was a witness to recovery of mobile phone and surgical blade.
However, he stated that he signed the documents in police station. He contended that there is no public witness to recovery of mobile phone and surgical blade. He contended that the prosecution has failed to prove the recovery of mobile phone from the accused, namely, Annu Sharma @ Rohit and surgical blade from the accused, namely, Vipin @ Monty @ Gorilla. He contended that the prosecution has failed to prove charges against the accused persons.
STATUTORY PROVISIONS:
21. Relevant statutory provisions are, as under:
390. 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.
FIR No. 156/2022 State vs. Annu Sharma @ Rohit & Anr. Page No. 7 of 18 Explanation.- The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
392. Punishment for robbery.- 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.
397. Robbery, or dacoity, with attempt to cause death or grievous hurt.- 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.
JUDICIAL PRECEDENTS:
22. In Venu @ Venugopal & Ors. vs. State of Karnataka, (2008) 3 SCC 94, Hon'ble Supreme Court of India held as under:
"8. Section 392 IPC provides for punishment for robbery. The essential ingredients are as follows:
1. Accused committed theft.
2. Accused voluntarily caused or attempted to cause
(i) death, hurt or wrongful restraint;
(ii) fear of instant death, hurt or wrongful restraint.
3. He did either act for the end
(i) to commit theft;
(ii) while committing theft;
(iii) in carrying away or in the attempt to carry away property obtained by theft.
10. The provision defines robbery which is theft or extortion when caused with violence of death, hurt or wrongful restraint. When there is no theft committed, then as a natural corollary there cannot be robbery. Robbery is only an aggravated form of offence of theft or extortion. Aggravation is in the use of violence of death, hurt or restraint.
FIR No. 156/2022 State vs. Annu Sharma @ Rohit & Anr. Page No. 8 of 18 Violence must be in course of theft and not subsequently. It is not necessary that violence actually should be committed but even attempt to commit it is enough."
23. In Ganesan vs. State Rep. by Station House Officer, 2021 SCC OnLine SC 1023, Hon'ble Supreme Court of India held, as under:
"47. The aforesaid view has been subsequently reiterated by this Court in the case of Dilawar Singh (Supra) and in paragraphs 19 to 21 it is observed and held as under:
"19. The essential ingredients of Section 397 IPC are as follows:
1. The accused committed robbery.
2. While committing robbery or dacoity
(i) the accused used deadly weapon
(ii) to cause grievous hurt to any person (iii) attempted to cause death or grievous hurt to any person.
3. ''Offender'' refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It is only envisages the individuals liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision. But the other accused are not vicariously liable under that section for acts of the co-accused."
(a) Whether the accused persons committed offence under Section 392 read with Section 34 IPC?
24. To prove its case, the prosecution examined the complainant as PW-1. He deposed, as under:
".....On 26.02.2022 at about 9.30 p.m., I along with my friends had gone to Pahar Ganj in a pub "My Bar". At about 10.30 p.m. - 11.00 p.m. I left the said bar and I was drunk at that time. My friend had already left the said bar. I walked some distance and thereafter I hired a auto rickshaw for Lakshmi Nagar.
FIR No. 156/2022 State vs. Annu Sharma @ Rohit & Anr. Page No. 9 of 18 Apart from driver, there was another person sitting on rear seat of the said auto rickshaw and I sat on the rear seat beside the said person and the driver drove the TSR towards Lakshmi Nagar. At about 11.30 p.m., TSR reached Paharganj bridge. The persons sitting beside me shown a blade to me and he slapped me. The said person took out my mobile phone make One Plus black colour having SIM of mobile number 9818356790 and 7011745835. The driver and said person de-boarded me from the TSR and they ran away in the said TSR. I took help of a motorcycle rider and I made call to my brother from the mobile phone of the said motorcycle rider. My brother made call at number 100. I was drunk and I went to my house and slept. On next day, I went to PS Nabi Karim and I gave my statement Ex.PW1/A. It bears my signatures at point A. I had shown the place of occurrence to police. Site plan is Ex.PW1/B was prepared at my instance. It bears my signature at point A. .....I am not able to identify the robbers as I was drunk at the time of incident and I could not see the robbers properly. I cannot say whether the accused persons present in the court were the same who had robbed me in the intervening night of 26./27.02.2022. Panchnama of my mobile phone is Ex.PW1/N. It bears my signature at point A. Indemnity bond is Ex.PW1/O. It bears my signature at point A. Bill/text invoice of mobile phone is Ex.PW1/1. The photographs of my mobile phone is Ex.PW1/2 to Ex.PW1/5. Today I have brought the aforesaid mobile phone.
At this stage witness produced on mobile phone make One Plus 6 and stated that the said mobile phone was robbed in the intervening night of 26/27.02.2022. Mobile phone is Ex.MO-1. I do not know the number of TSR in which I was robbed and I cannot identify the said TSR....."
(emphasis supplied)
25. It is evident that the complainant narrated the incident. However, he did not identify the accused persons as the persons who had robbed him. He was in inebriated condition and he could not see the robbers. Non-identification of the accused by the victim of the crime is a most crucial aspect of the case.
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26. Section 114 (a) of 'The Indian Evidence Act' is, as under:
"114. Court may presume existence of certain facts.-The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations The Court may presume-
(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;"
27. The Court may draw presumption under Section 114
(a) of 'The Indian Evidence Act' that a person who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.
28. The court can convict an accused exclusively on the basis of recovery of inculpatory material. However, in order to sustain the guilt of such accused, the recovery should be unimpeachable and it should not be shrouded with elements of doubt. The testimony and trustworthiness of the recovery witnesses are the relevant considerations that assist the Court in appreciating intrinsic worth of evidence and credibility of the recovery. Where depositions of the prosecution witnesses qua the recovery do not inspire confidence, the Court must extend benefit of doubt to the accused.
29. On examination of intrinsic worth of evidence of recovery witnesses, this Court is of the considered opinion that evidence of PW-9 ASI Arun Kumar, PW-7 Ct. Mukesh Kumar and PW-8 Ct. Sanjay pertaining to recovery is not beyond doubt.
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30. It is true that the prosecution need not to examine a particular number of witnesses to prove its case. The Court is not concerned with quantity of evidence but with the quality of evidence.
31. It is an established proposition of law that police officials are competent witnesses and their evidence cannot be discarded on the sole ground that they belonged to police force. Police officials are acting in discharge of their duties. Their evidence cannot be doubted in the absence of any malice or enmity on their part. However, their evidence must be scrutinized with circumspection and caution.
32. The case of the prosecution, as unfolded in the prosecution evidence, is that on 28.02.2022, PW-9 ASI Arun Kumar alongwith PW-7 Ct. Mukesh Kumar and PW-8 Ct. Sanjay reached at the gate of PS Nabi Karim where the complainant met him and thereafter, they went to Sheela Cinema, Qutab Road in search of the robbers and case property. It is further case of the prosecution that PW-9 ASI Arun Kumar received a secret information that the robbers were present at R.K. Ashram Metro Station. Thereafter, he alongwith aforesaid police officials, the complainant and secret informer reached R.K. Ashram Metro Station and apprehended the accused, namely, Annu Sharma @ Rohit and recovered robbed mobile phone from him. It is further case of the prosecution that PW-9 ASI Arun Kumar prepared seizure memo of TSR No. DL 1RU 2572 Ex.PW1/C and mobile phone Ex.PW1/D respectively. He arrested him, vide arrest memo Ex.PW1/E and interrogated him, vide disclosure statement Ex.PW1/G. He also prepared site plan of the place of recovery of mobile phone Ex.PW7/A. FIR No. 156/2022 State vs. Annu Sharma @ Rohit & Anr. Page No. 12 of 18
33. It is further case of the prosecution that pursuant to disclosure statement of the accused, namely, Annu Sharma @ Rohit Ex.PW1/G, PW-9 ASI Arun Kumar apprehended the accused, namely, Vipin @ Monty @ Gorilla and recovered a surgical blade from him. He prepared seizure memo and sketch of surgical blade Ex.PW1/H and Ex.PW1/I. He arrested him, vide arrest memo Ex.PW1/J.
34. PW-9 ASI Arun Kumar, PW-7 Ct. Mukesh Kumar and PW-8 Ct. Sanjay deposed to this effect. However, the complainant deposed that on 28.02.2022, he went to PS Nabi Karim and thereafter, he alongwith police officials went to R.K. Ashram in search of robbers but they were not found. Therefore, it is evident that the complainant did not support the case of the prosecution pertaining to apprehension of the accused persons at R.K. Ashram Metro Station in his presence. He stated that he had signed the documents in police station. He did not identify the surgical blade Ex.MO1. His evidence on this aspect is, as under:
"On 28.02.2022, I went to police station Nabi Karim. I along with police staff went to R. K. Ashram in search of robbers but they were not found. We returned to PS and I went to my house. Later I received call from PS Nabi Karim and I was informed that my mobile phone has been recovered. I got released my aforesaid phone on superdari.....The documents i.e. seizure memo of TSR No. DL1RU2572 Ex.PW1/C, seizure memo of mobile phone One Plus 6 black colour Ex.PW1/D, arrest memo of accused Annu Sharma Ex.PW1/E, personal search memo of accused Annu Sharma Ex.PW1/F, disclosure statement of accused Annu Ex.PW1/G, seizure memo of surgical blade Ex.PW1/H, sketch memo of surgical blade Ex.PW1/I, arrest memo of accused Monty Ex.PW1/J, personal search memo of accused Monty Ex.PW1/K, disclosure statement of accused Monty Ex.PW1/L and pointing out memo Ex.PW1/M bear my signature at point A respectively. I signed the said document in Police Station.
FIR No. 156/2022 State vs. Annu Sharma @ Rohit & Anr. Page No. 13 of 18 I am not able to identify the surgical blade shown to me by the robbers.
At this stage, MHC (M) has produced one parcel sealed with the seal of AK. Parcel opened after breaking the seal and found containing one surgical blade kept in match box. Surgical blade is shown to the witness. Witness stated that he does not remember whether the said blade is the same which was shown to him by robbers."
35. The prosecution cross-examined the complainant on the aspect of apprehension of the accused persons and recovery. However, the prosecution could not elicit anything from his cross-examination. His cross-examination is, as under:
"It is wrong to suggest that on 28.02.2022 at about 1.40 p.m., I along with police staff went to Qutab road near Sheela Cinema and one secret informer informed IO ASI Arun Kumar that one of the robbers was present at R. K. Ashram Metro Station and waiting for his associate to commit robbery and can be apprehended with TSR, if raided (confronted with portion X to X1 of statement Ex.PW1/PA where it is so recorded). It is wrong to suggest that I along with IO and police staff and secret informer reached near R. K. Ashram Metro Station where the accused Annu Sharma standing with a TSR was apprehended at the instance of secret informer and I identified the accused Annu Sharma as one of the robbers who was driving the TSR at the time of robbery (confronted with portion X2 to X3 of statement Ex.PW1/PA where it is so recorded).
It is wrong to suggest that my robbed mobile phone without SIM was recovered from right side pocket of pants of accused Annu Sharma in my presence and I identified my mobile phone. (confronted with portion X4 to X5 of statement Ex.PW1/PA where it is so recorded).
It is wrong to suggest my robbed mobile phone was seized in my presence and I signed seizure memo Ex.PW1/D after seizure of my mobile (confronted with portion X6 to X7 of statement Ex.PW1/PA where it is so recorded). It is wrong to suggest that TSR No. DLIRU2572 was recovered from possession of accused Annu Sharma and seized in my presence and I signed seizure memo Ex.PW1/C after seizure of TSR (confronted with portion X8 to X9 of statement Ex.PW1/PA where it is so recorded).
FIR No. 156/2022 State vs. Annu Sharma @ Rohit & Anr. Page No. 14 of 18 It is wrong to suggest that accused Annu Sharma was arrested and his personal search was carried out in my presence and I signed the documents Ex.PW1/E and Ex.PW1/F after said proceedings in my presence (confronted with portion X10 to X11 of statement Ex.PW1/PA where it is so recorded). It is wrong to suggest that accused Annu Sharma disclosed in my presence about co-accused Vipin @ Monty and his disclosure statement was recorded in my presence and thereafter I signed the same (confronted with portion X12 to X13 of statement Ex.PW1/PA where it is so recorded). It is wrong to suggest that accused Annu Sharma got arrested accused Vipin @ Monty after identification by me as one of the robbers and his personal search was carried out in my presence vide memo Ex.PW1/J and PW1/K signed by me (confronted with portion X14 to X15 of statement Ex.PW1/PA where it is so recorded). It is wrong to suggest that a surgical blade was recovered from right side pocket of pants of accused Vipin @ Monty and the said surgical blade was seized by IO in my presence and I signed the sketch memo Ex.PW1/I and seizure memo Ex.PW1/H of surgical blade after said proceedings (confronted with portion X16 to X17 of statement Ex.PW1/PA where it is so recorded). It is wrong to suggest that accused Vipin @ Monty made disclosure in my presence vide memo Ex.PW1/L and accused persons us to the place of occurrence and pointing out memo was signed by me after said proceedings (confronted with portion X18 to X19 of statement Ex.PW1/PA where it is so recorded). It is wrong to suggest that I am deliberately and intentionally not identifying the accused persons today. It is wrong to suggest that I am deposing falsely regarding all the proceedings conducted on 28.02.2022 pertaining to arrest of accused persons, recovery of my mobile phone, surgical blade and TSR. It is wrong to suggest that I signed all the documents during aforesaid proceedings. It is wrong to suggest that I am deposing falsely regarding the aforesaid facts as I have been won over by the accused persons or any compromise has taken place between us."
36. The authenticity and credibility of recovery of mobile phone and surgical blade from the accused persons do not inspire confidence.
FIR No. 156/2022 State vs. Annu Sharma @ Rohit & Anr. Page No. 15 of 18
37. Besides the fact that the complainant has not supported the case of the prosecution pertaining to apprehension of the accused persons and recovery of mobile phone and surgical blade from the accused persons, the manner of apprehension of the accused persons is also not inspiring.
38. In the absence of credible evidence pertaining to recovery of mobile phone and surgical blade from the accused persons, the presumption under Section 114 (a) of 'The Indian Evidence Act' cannot be drawn against the accused persons.
39. Therefore, the prosecution failed to establish that the accused persons robbed the complainant.
40. Therefore, the prosecution failed to prove the charge under Section 392/34 IPC against the accused persons.
(b) Whether Section 397 IPC is applicable qua the accused, namely, Vipin @ Monty @ Gorilla?
41. As already noted above, the complainant did not identify the accused persons. He did not identify the surgical blade. The prosecution failed to prove that the accused, namely, Vipin @ Monty @ Gorilla robbed the complainant. Therefore, the question for application of Section 397 IPC does not arise. Therefore, Section 397 IPC would not come into operation qua the accused, namely, Vipin @ Monty @ Gorilla.
(c) Whether the accused, namely, Annu Sharma @ Rohit committed offence under Section 411 IPC?
42. As already noted above, the prosecution failed to prove recovery of mobile phone from the accused, namely, Annu Sharma @ Rohit. Therefore, the prosecution failed to prove the charge under Section 411 IPC against him.
FIR No. 156/2022 State vs. Annu Sharma @ Rohit & Anr. Page No. 16 of 18 CONCLUSION:
43. The accused, namely, Annu Sharma @ Rohit and Vipin @ Monty @ Gorilla are acquitted from offence under Section 392/34 IPC.
44. The accused, namely, Annu Sharma @ Rohit is also acquitted from offence under Section 411 IPC.
45. The accused, namely, Vipin @ Monty @ Gorilla is acquitted from offence under Section 397 IPC. Digitally signed by SANJAY SANJAY SHARMA SHARMA Date:
2023.08.08 10:17:18 +0530 Announced in the open Court SANJAY SHARMA-II on this 05th August, 2023 Addl. Sessions Judge-03 (Central) Tis Hazari Courts, Delhi FIR No. 156/2022 State vs. Annu Sharma @ Rohit & Anr. Page No. 17 of 18 State vs. Annu Sharma @ Rohit & Anr.
CNR No.: DLCT01-007966-2022 SC No. 316/2022 FIR No. 156/2022 Under Section 392/397/411/34 IPC PS Nabi Karim 05.08.2023 Present : Mr. Ashesh Kumar, Ld. Addl. PP (Substitute) for the State.
Mr. Manish Garg, Advocate with the accused persons.
The Court has examined the accused persons under Section 313 Cr.P.C. Ld. Defence Counsel stated that the accused persons do not want to lead defence evidence. The Court has heard final arguments. Vide separate judgment announced in the open Court, the accused persons, namely, Annu Sharma @ Rohit and Vipin @ Monty @ Gorilla are acquitted from offence under Section 392/34 IPC. The accused, namely, Annu Sharma @ Rohit is also acquitted from offence under Section 411 IPC. The accused, namely, Vipin @ Monty @ Gorilla is acquitted from offence under Section 397 IPC. The accused persons are admitted to bail on furnishing personal bond in the sum of Rs. 10,000/- each with one surety in the like amount, as required under Section 437A Cr.P.C. As requested, requisite bond be furnished within one Digitally signed by week. File be consigned to record room.SANJAY SANJAY SHARMA SHARMA Date:
2023.08.08 10:17:32 +0530 Sanjay Sharma-II ASJ-03, Central District Tis Hazari Courts, Delhi 05.08.2023 FIR No. 156/2022 State vs. Annu Sharma @ Rohit & Anr. Page No. 18 of 18