Delhi District Court
Sc No. 605/2022 Fir No. 552/2020 State vs Kanhaiya @ Paglu & Anr. Page 1 Of 14 on 5 June, 2023
IN THE COURT OF SH. SUSHIL KUMAR,
ADDITIONAL SESSIONS JUDGE-04 (NORTH),
ROHINI COURTS, DELHI
CNR No. DLNT01-006945-2022
SC No. 605/2022
FIR No. 552/2020
U/s: 392/397/34 IPC
PS Shahbad Dairy
State
Vs.
1) Kanhaiya @ Paglu
S/o Sh. Anil Prasad,
R/o B-986, SB Dairy,
Delhi. ....Accused No.1.
2) Vicky @ China
S/o Sh. Vijay Gautam,
R/o A-96, Near Durga Mandir,
Jhuggi SB Dairy,
Outer North Delhi. ....Accused No.2.
Date of institution : 19.01.2021
Date of committal to Sessions Court : 29.07.2022
Date of institution in Sessions Court : 30.07.2022
Date on which Judgment pronounced : 05.06.2023
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION:
1. Succinctly, the facts of the case as per prosecution are that on 28.10.2020, an information was received at police station Shahbad Dairy vide DD No. 91A regarding snatching of money near Sector-34, Bawana Nahar Road, Rohini, Delhi.SC No. 605/2022 FIR no. 552/2020 State Vs Kanhaiya @ Paglu & Anr. Page 1 of 14
2. On receipt of DD No. 91A, SI Jitender Singh alongwith Ct Bhagat went to the spot, where they met Complainant Sh. Rakesh Kumar who informed him that two person have robbed his money from him. Thereafter, both the police officials along with Complainant searched for both the accused persons who robbed the Complainant but in vain. Thereafter, SI Jitender recorded the statement of Complainant Sh. Rakesh Kumar and prepared rukka and handed over the same to Ct. Bhagat for the registration of FIR and thereafter, the matter was marked to ASI Gulab Singh, who is Investigating Officer in the present case.
3. Complainant Sh. Rakesh Kumar stated in his statement that 28.10.2020 at about 10.30 A.M. he had left his company's Distributor's office situated at Badli Industrial Area for collection of cash on his motorcycle bearing registration no. DL-11B-6559 make Hero Splender Black Color. That he had collected cash from various clients (not mentioned here in detail). That at about 4.00 P.M., when he reached at Main Road near Bawana Nahar, Sector-34, Rohini, suddenly two persons came on a black color Motorcycle and put their motorcycle in front of his motorcycle due to which he also stopped his motorcycle. That both the said persons were aged around 20-25 years. That both the said persons alighted from their motorcycle and the person, who was driving the motorcycle, took out a knife and showed to him. That the said person asked him to give all the money he was having at that time and threatened him to stab the knife otherwise. The person who was sitting behind also put up his shirt, showed a pistol to him and asked for all the money he was having at that time. That thereafter, the person who had shown pistol, took out all the money which he was having at that time. That thereafter, both the said persons ran away from spot on SC No. 605/2022 FIR no. 552/2020 State Vs Kanhaiya @ Paglu & Anr. Page 2 of 14 their motorcycle. That he made a phone call on 100 number and police reached at spot.
4. During the course of investigation, accused persons namely Kanhaiya @ Paglu and Vicky @ China were arrested and case property i.e., currency notes of Rs. 2,200/- were recovered from them. After completion of investigation, charge-sheet for the offences u/s 397/394/411/34 IPC was filed in the Court of concerned Ld. M.M on 19.01.2021 against both the accused persons namely Kanhaiya @ Paglu and Vicky @ China.
5. After compliance of provisions of section 207 Cr.P.C., Ld. Metropolitan Magistrate committed the case to the Court of Sessions on 30.07.2022.
6. Arguments on the point of charge were heard. As prima facie case was made out, charges for the offences punishable u/s 392/397/34 IPC were framed against both the accused persons namely Kanhaiya @ Paglu and Vikas @ China and vide order dated 19.10.2022, to which, both the above-named accused persons pleaded not guilty and claimed trial. Thereafter, the matter was fixed up for recording of prosecution evidence.
7. In order to substantiate its case against accused persons, prosecution has examined total five witnesses. The details of said witnesses are as under:-
S.No. Name of prosecution Purpose of examination
witnesses
1. PW-1 HC Deepak He is a witness of arrest of accused
Kanhaiya @ Paglu as well as recovery of
SC No. 605/2022 FIR no. 552/2020 State Vs Kanhaiya @ Paglu & Anr. Page 3 of 14
the case property i.e., currency notes
amounting to Rs.2,200/-.
2. PW-2 ASI Rakesh Kumar He had arrested accused Vicky @ China
in another case bearing FIR No.322/2020
PS Shabad Dairy wherein disclosure
statement regarding the involvement of
both accused persons have been made by
accused Vicky @ China.
3. PW-3 Sh. Rakesh Kumar He is the complainant/eye witness in the
present case.
4. PW-4 HC Yogender Dahiya. He is a witness of arrest of accused Vicky @ China and had also joined investigation with the IO in the present case.
5. PW-5 ASI Ram Naresh He is the investigating officer in the present case.
8. PW3 Rakesh Kumar (complainant/Victim) is the sole eye-witness of the incident of robbery and identity of assailants who had committed the offences. However, PW3 turned hostile and did not identify the accused persons as the ones who had committed robbery of his money amounting to Rs. 2200/-. PW-3 also failed to identify the case property i.e. the currency notes amounting to Rs. 2200/- which were alleged to be recovered from the possession of accused persons.
9. Since nothing incriminating against both the accused persons had come in the testimony of PW-3/Complainant, therefore prosecution evidence was closed as continuing further with the trial would have been an exercise in futility as even if the remaining case would have been taken on face value, there was not SC No. 605/2022 FIR no. 552/2020 State Vs Kanhaiya @ Paglu & Anr. Page 4 of 14 even a remote possibility of conviction of the accused persons. It was followed by recording statement of accused persons namely Kanhaiya @ Paglu and Vicky @ China U/s 313 Cr. PC. All the incriminating evidence coming on record was put to both the above-named accused persons to which they pleaded innocence and claimed false implication. Both the above-named accused persons wished not to lead defence evidence.
10. The Court have heard ld. Addl. PP for the State and ld. Defence counsel for the accused persons and have carefully gone through the material available on record.
11. It would be appropriate to have glance at the gist of deposition made by prosecution witnesses:
12. PW-1 HC Deepak has deposed in his examination-in-chief that on 15.11.2020, he was posted at PS S.D. Dairy. He further deposed that on that day, he joined the investigation of the present case with IO ASI Gulab Singh. He further deposed that on the basis of information, they had gone at near back side of Peer Baba Mazar, vacant DDA Land, Shahbad Dairy, Delhi, where they apprehended accused person namely Kanhaiya @ Paglu who was present there with a motorcycle bearing registration no.7149. He further deposed that on inquiry, it was revealed to them that the said motorcycle was stolen from the area of PS Burari, Delhi. He further deposed that on formal checking, they have found Rs.2200/- from the pocket of his wearing pant and on query, accused Kanhaiya @ Paglu replied that he had robbed the same from Sector-34, Rohini, Delhi with his associate Vicky @ China. He further deposed that IO took the said currency SC No. 605/2022 FIR no. 552/2020 State Vs Kanhaiya @ Paglu & Anr. Page 5 of 14 notes of Rs.2200/- in his possession vide seizure memo Ex. PW1/A and the said motorcycle was also taken into possession by the IO vide seizure memo Ex. PW1B. He further deposed that IO arrested accused Kanhaiya @ Paglu in the present case vide arrest memo Ex. PW1/C and his personal search was conducted vide memo Ex. PW1/D. He further deposed that IO recorded disclosure statement of accused Kanhaiya @ Paglu. He further deposed that accused Kanhaiya @ Paglu took them to place of incident i.e., sector-34, near Bawan Nehar Road, Rohini, Delhi, where both the accused persons committed the robbery in the present case. He further deposed that IO prepared pointing out memo which is Ex. PW1/E. PW-1 has correctly identified accused Kanhaiya @ Paglu in the Court.
PW-1 was cross-examined by Ld. counsel for accused at length. During his cross-examination, he deposed that they had reached at the spot of recovery at 12:00 noon and some children were playing in the ground near to the place of recovery at that particular time. PW-1 deposed that the make of motorcycle was Pulsar bearing complete registration no. DL 11SW 7149. He further deposed that accused had come at the spot at about 01:00 PM. He further deposed that he do not remember the denomination of the currency notes recovered from the accused Kanhaiya @ Paglu at the spot. He deposed that he do not remember as to total how many currency notes were recovered at that time and what was there denomination. He also deposed that he also do not remember as to total how many currency notes were in the denomination of Rs.500/-, Rs.200/- & Rs.100/- were in the said recovery. PW-1 admits that IO did not take any photo of the said recovery currency notes. He further admits that IO did not SC No. 605/2022 FIR no. 552/2020 State Vs Kanhaiya @ Paglu & Anr. Page 6 of 14 put his initial or not put any mark on the said recovered currency notes. PW-1 denied the suggestion that nothing was recovered from the possession of accused Kanhaiya @ Paglu and the said reason, he does not remember anything in this regard. PW-1 admitted that IO did not serve any notice in writing to any public person for joining the investigation. He voluntarily deposed that IO made efforts to join them but none agreed. PW-1 further admitted that the place of incident was surrounded by the residential colony and voluntarily deposed that the said colonies situated at a distance of about 200 meters from the spot. PW-1 denied the suggestion that IO did not obtain his signature on the site plan of recovery. He denied the suggestion that the same was not obtained as he was not present there at that time. PW-1 denied the suggestion that the has signed all the documents while sitting at the PS at the instance of IO or that he never joined the investigation in the present case at any point of time.
13. PW2 ASI Rakesh Kumar deposed that on 20.11.2020, he had arrested accused Vicky @ China in case FIR No.322/2020 U/s 308/341/34 IPC PS Shahbad Dairy. He further deposed that accused Vicky @ China had made his disclosure statement regarding his involvement in case FIR No.552/2020 U/s 392/397/411/34 IPC. He further deposed that he gave information regarding the same to IO ASI Gulab Singh of the present FIR case. He further deposed that he has also handed over the copy of arrest memo and disclosure statement of accused Vicky @ China of case bearing FIR No.322/2020 PS Shahbad. PW-2 correctly identified accused Vicky @ China present in the Court.
PW-2 was not cross-examined by Ld. Amicus Curaie for both the accused persons despite opportunity given.
SC No. 605/2022 FIR no. 552/2020 State Vs Kanhaiya @ Paglu & Anr. Page 7 of 1414. PW-3 Sh. Rakesh Kumar is the complainant and star witness in the present case on whose complainant the present FIR case has been registered. PW-3 deposed that he was working as Marketing Executive and in the year 2020, he was also Marketing Executive with Hindustan Uni Liver Company. PW-3 deposed that on 28.10.2020, at about 10:15 A.M., he left the distributor point of the above mentioned company at Samay Pur Badli Industrial Area after collecting the bills regarding collection of payment from the parties/customer of the company. He further deposed that he was on his motorcycle bearing registration no. DL 11B 6559 and firstly at about 11:15 AM he reached at Kanjhawala and from there he collected Rs. 377/- from the shopkeeper regarding payment of the bills of the company and thereafter at about 12:30 P.M., he reached Qutub Garh, Delhi and collected Rs. 4500/- from the shop keeper regarding payment of the bills of the company. PW-3 further deposed that thereafter at about 2:30 P.M., he reached at Mungesh Pur and collected Rs. 8000/- from the shopkeeper regarding payment of the bills of the company. He further deposed that thereafter at about 03:00 P.M., he reached at Dariya Pur, Delhi and collected Rs. 7,000/- from the shopkeeper regarding payment of the bills of the company. PW-3 further deposed that after collecting said amount of money at about 4:00 P.M., he was returning to the said Distributor point at Samay Pur Badli Industrial Area via Bawana Industrial Area and at about 4:00 P.M. when he reached at Sector 34, Rohini Main Road near Bawana Canal, he slow down the speed of the motorcycle as the road was broken and at the same time two boys came on motorcycle from my back side and put their motorcycle in front of his motorcycle and due to which he has to stop his motorcycle. He further deposed that both the said boys alighted down from their motorcycle and SC No. 605/2022 FIR no. 552/2020 State Vs Kanhaiya @ Paglu & Anr. Page 8 of 14 the person who was driving the motorcycle took out the knife and put the knife on his abdomen and started abusing him and stated to him that whatever money he has, he has to handover to the same to him. PW-3 further deposed that other boy put up his shirt and showed him the pistol and told him that he was having pistol and asked him to hand over whatever money he was having to them. He further deposed that the said boy who showed him the pistol searched him and took out all the above mentioned money which he had collected from his possession. PW-3 further deposed that the other boy who was having the knife with him checked his bag and purse and as nothing was in it so he returned the same to him. He further deposed that both the said persons thereafter fled away from there on their motorcycle. PW-3 further deposed that he made phone call at 100 number from his mobile phone no. 9990778511 and thereafter Police official came there, inquired him and recorded his statement (Ex.PW3/A) bearing his signature at point A. He further deposed that police officials prepared site plan (Ex.PW3/B) of the spot at his instance. PW-3 further deposed that he cannot identify the said persons due to lapse of time and also they were wearing mask. He further deposed that he cannot identify his robbed money if shown to him.
15. As the PW-3 / Complainant failed to identify both the accused persons, Ld. Additional PP for State sought permission from the Court to cross examine the witness which was allowed by the Court. During cross-examination by Ld. Addl PP for State, PW-3 deposed that he had stated to the police official that the said persons were wearing mask at the time of incident. PW-3 admitted that there is nothing about wearing of mask is mentioned in his statement Ex. PW3/A. PW-3 after seeing both the accused persons who were present in the SC No. 605/2022 FIR no. 552/2020 State Vs Kanhaiya @ Paglu & Anr. Page 9 of 14 court deposed that he cannot say whether they are the said persons who on the date of incident robbed his money. PW-3 denied the suggestion that he have compromised with the accused persons and due to compromise, he is not identifying the accused persons.
During cross-examination by Ld. Addl PP for state, case property was shown to the witness i.e. which was in a envelope and out of the same Rs. 2200/- (denomination of Rs. 2000/- & two notes of Rs. 100/-) were taken out and shown to the witness and on witness on seeing that deposed that he cannot say whether the said money belongs to him as all the currency notes appears to be the same. PW-3 denied the suggestion that he is deliberately identifying the money. PW-3 was not cross-examined by Ld. Amicus Curiae for both the accused persons despite opportunity given.
16. PW-4 HC Yogender Dahiya has deposed on the same lines as deposed by PW-5 ASI Gulab Singh Malik.
17. PW-5 ASI Gulab Singh is the Investigating Officer of the present case. He has narrated all the steps taken by him during the investigation of the present case. He has testified that on 28.10.2020, investigation of the present case was marked to him. He further deposed that Complainant of the present case namely Rakesh Kumar met him in the PS and he alongwith him and his staff reached at the spot and prepared site plan of the spot at the instance of complainant Rakesh Kumar ( Ex.PW3/B). He further deposed that he searched for the accused persons but they were not traced. He further deposed that on 15.11.2020, he was present at PS Shahbad Dairy, Delhi and secret informer came SC No. 605/2022 FIR no. 552/2020 State Vs Kanhaiya @ Paglu & Anr. Page 10 of 14 and informed that one person involved in committing the offence in the present case would come today behind Peer Baba Mazar. He further deposed that he alongwith Ct. Deepak (PW-1) and secret informer reached at Peer Baba Mazar and asked the public persons to join the investigation but none had agreed. He further deposed that one motorcycle DL 11SW 7149 was parked there in abandoned condition and after some time one person came near the said bike and stood there and on seeing him, secret informer pointed towards him as the person who is involved in the present case. He further deposed that when the said person put the key of the motorcycle in the motorcycle, PW-3 apprehended the said person and came to know his name as Kanhiya @ Paglu and he correctly the accused present in the court. He further deposed that the said motorcycle was stolen by accused Kanhaiya @ Paglu from the area of PS Burari. He further deposed that accused Kanhaiya @ Paglu disclosed about his involvement in the present case alongwith his associates namely Vicky @ China and he was arrested vide arrest memo Ex. PW1/C. He further deposed that accused Kanhaiya @ Paglu was personally searched vide personal search memo Ex. PW1/D. He further deposed that disclosure statement of accused Kanhaiya @ Paglu was recorded vide memo Ex. PW1/E. PW-4 further deposed that a sum of Rs. 2,200/- was recovered from the possession of accused Kanhaiya @ Paglu out of the remaining robbed money and the same were taken into police possession vide seizure memo Ex.PW1/A. He further deposed that the said motorcycle was taken into police possession vide seizure memo Ex.PW1/B. PW-5 further deposed that accused Kanhiya @ Paglu pointed the place of incident and pointing out memo was prepared in this regard (Ex.PW1/F). PW-5 further deposed that he had also prepared the site plan of the place from where the said motorcycle was seized SC No. 605/2022 FIR no. 552/2020 State Vs Kanhaiya @ Paglu & Anr. Page 11 of 14 and accused Kanhaiya @ Paglu was arrested and Rs. 2200/- was recovered from him Ex.PW5/A. He further deposed that accused Kanhaiya @ Paglu was produced before the concerned court and he was sent to JC.
PW-5 has further deposed in his examination-in-chief that on 20.11.2020 accused Vicky @ China was arrested by ASI Rakesh in case i.e. FIR No. 322/2020 U/s. 308/341/34 IPC PS Shahbad Dairy. He further deposed that he came to know that Vicky @ China had disclosed in that case about his involvement in the present case i.e. FIR no. 552/2020 and on this, he made inquiries from Vicky @ China and arrested him in the present case vide arrest memo Ex. PW4/A and vide personal search memo Ex. PW 4/B. He further deposed that accused Vicky @ China disclosed about his involvement in the present case and disclosure statement was recorded by him vide Ex. PW4/C . PW-5 further deposed that accused Vicky @ China pointed the place of incident and pointing out memo of place of incident which was prepared on his instances (Ex. PW 4/D). He further deposed that on the pointing out of accused Vicky @ China, he searched for the duplicate pistol but it was not traced and accused was sent to JC. He further deposed that both the accused persons had refused to join the TIP proceedings. PW-5 identified case property containing one note of Rs. 2000/- denomination and two notes of Rs. 100/- denomination and deposed that the same was recovered from accused Kanhiya (Ex. P1).
18. PW-5 was cross-examined by Ms. Hema Goel, Ld. Amicus Curiae for both the accused persons. In his cross-examination, PW-5 admitted that the details of Rs.2,200/- is not mentioned in the case file. He denied the suggestion that both the accused persons were falsely implicated in the present case or that SC No. 605/2022 FIR no. 552/2020 State Vs Kanhaiya @ Paglu & Anr. Page 12 of 14 accused persons never made any disclosure statements or that Rs. 2,200/- was not of the robbed amount of the complainant.
19. In the present case, star witness of Prosecution on whose statement the present FIR has been registered is PW-3 Sh. Rakesh Kumar. He has been examined in the Court, however, the said PW has turned hostile and did not identify the accused persons as the ones who had committed robbery. It is further important to mention that PW-3 has also not identified the case property i.e., the currency notes alleged to be recovered from the possession of accused persons. Moreover, the currency notes alleged to be recovered from the possession of accused persons cannot be said to be having any distinctive identity so as to held the accused persons liable for the offence punishable U/s 411 IPC.
20. As already discussed above, nothing incriminating against the accused persons has come in the testimony of eye witness / PW-3 Sh. Rakesh Kumar and he has also failed to identify them as the one who had robbed his money. In the present case, continuing further with the trial would have been an exercise in futility as even if the remaining case would have been taken on face value, there was not even a remote possibility of conviction of the accused persons. Further, the burden of proof on the prosecution is to prove the case by leading cogent, convincing and reliance evidence to prove the guilt of accused persons beyond reasonable doubt. Accused cannot be convicted on the basis of mere probabilities or presumptions. Suspicion, howsoever grave may be, cannot take place of proof. Every benefit of doubt goes in favor of accused.
SC No. 605/2022 FIR no. 552/2020 State Vs Kanhaiya @ Paglu & Anr. Page 13 of 1421. There is nothing on record to establish the culpability of the accused persons in the commission of the offence, charged against them. The Complainant have turned hostile and thus, the prosecution has failed to prove its case against the accused persons namely Kanhaiya @ Paglu and Vicky @ China. In the light of the above testimony of the afore-mentioned witnesses, both accused persons namely Kanhaiya @ Paglu and Vicky @ China cannot be held guilty for offences alleged against them. Since the complainant turned hostile, the case of the prosecution has fallen like a pack of cards.
22. Accordingly, in view of the above discussions, accused persons namely Kanhaiya @ Paglu and Vicky @ China stands acquitted of the charges punishable U/s 394/397/34 IPC. Both the above-named accused persons are directed to furnish bail bonds U/s 437-A Cr.P.C., which shall remain in force for a period of six months from today. Previous surety stands discharged. Documents, if any, of the surety/sureties be returned to the rightful owner after due acknowledgement and endorsement, if any, made on it be cancelled Digitally signed accordingly. SUSHIL by SUSHIL KUMAR KUMAR Date:
2023.06.08 17:34:29 +0530 Announced in the Open Court (Sushil Kumar) On 05th of June, 2023 Addl. Sessions Judge: 04 (North) Rohini Courts: Delhi SC No. 605/2022 FIR no. 552/2020 State Vs Kanhaiya @ Paglu & Anr. Page 14 of 14