Delhi District Court
State vs . Kamlesh Kumar Etc. on 15 February, 2013
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 56/08)
Unique ID case No. 02404R0449532008
State Vs. Kamlesh Kumar Etc.
FIR No. : 15/08
U/s : 394/397/411/34 IPC
P.S. : Adarsh Nagar
State Vs. 1. Kamlesh Kumar
S/o Sh. Devi Charan
R/o D1090, Jahangir Puri,
Delhi.
2 Rakesh
S/o Sh. Munshi Lal
R/o E406, Jahangir Puri,
Delhi.
Date of institution of case 12.06.2008
Date on which, judgment has been reserved 15.02.2013
Date of pronouncement of judgment : 15.02.2013
JUDGMENT:
1 The investigations in the present case commenced when PW1 Kailash Chand went to PS Ashok Vihar on 13.01.2008 in an injured condition. He met PW5 SI S.C. No. 56/08 : State vs. Kamlesh Etc. : Page 1 of 19 Haroon Ahmed, who sent him to BJRM Hospital wherein he was examined vide MLC Ex.PW6/A. After being declared 'fit for statement' injured Kailash Chand gave statement Ex.PW1/A wherein he deposed that he was residing at 24D, DDA Janta Flats, Ashok Vihar, PhaseIII, Delhi, with his family and was a custom officer and had his office at Mahipalpur. On 12.01.2008, at about 9:00 PM, after finishing his duty, he took an auto from Air Cargo Bus Stop, Mahipalpur, for Ashok Vihar. At Dhaula Kuan, an acquaintance of auto driver also sat in the said auto. The complainant told auto driver to take him via Karol Bagh route but said auto driver took route of outer ring road and when complainant questioned him about it, the auto driver told him the said route would be faster and complainant could pay him whatever fare he usually paid. Complainant further stated that both of the persons in auto took him via outer ring road to Mukanpur Chowk and after reaching there, they turned the auto on road going from Mukandpur to Adarsh Nagar and stopped their auto on a deserted road. When complainant asked said persons why they had taken him to said place, they both started giving slap and fist blows to him and took away Rs.3,200/, an I Card, mobile phone bearing No.9818973738, lunch box and black bag belonging to the complainant. When complainant tried to raise alarm, one of them gave a blow on his head with an iron rod, as a result of which complainant fell down and lost consciousness. When complainant regained consciousness, he tried to seek help from passerby and ultimately two boys gave him lift on their bike and dropped him at his residence. At night complainant could not inform Police as he was indisposed and on the next day he went to PS. 2 On the basis of said complaint, Ex.PW1/A, case FIR Ex.PW3/A i.e. FIR S.C. No. 56/08 : State vs. Kamlesh Etc. : Page 2 of 19 No.15/08 u/s.394 IPC was registered at P.S. Adarsh Nagar against unknown assailants and investigations were handed over to ASI Gopi Ram. During course of investigation, IO ASI Gopi Ram prepared site plan of the place of incident and commenced search for the accused persons.
3 On 05.02.2008 on receipt of DD No.8A, ASI Gopi Ram went to office of AATS/Crime Branch, R.K. Puram where accused Rakesh s/o Munshi Lal was in detention u/s.41.1(D) & 102 CrPC. On interrogation accused Rakesh disclosed that he had purchased mobile phone make Nokia 1600 from person named Kamlesh. The accused Rakesh was arrested in the present case.
4 On 12.01.2008 ASI Gopi Ram came to know that accused Kamlesh Kumar, who had robbed the complainant in the present case, was in custody in case FIR No. 595/06 u/s. 379/411 IPC registered at P.S. Darya Ganj. ASI Gopi Ram obtained production warrants of accused Kamlesh and thereafter on his production before the concerned Court, interrogated him with the permission of the Court and later arrested him in the present case. Accused Kamlesh disclosed that he had robbed complainant Kailash Chand, with his accomplice Babloo. ASI Gopi Ram made efforts to search for Babloo but he was not traceable.
5 During course of investigation, IO got TIP of accused Kamlesh conducted wherein complainant Kailash Chand identified said accused. After completing investigation charge sheet was prepared and filed in the Court against accused Kamlesh S.C. No. 56/08 : State vs. Kamlesh Etc. : Page 3 of 19 and Rakesh only as accused Babloo could not be arrested till filing on the charge sheet. The said charge sheet was committed to Court of session for trial. 6 Subsequently supplementary charge sheet in respect of accused Babloo was also filed, after he was arrested on 27.07.2008.
7 After hearing arguments, learned Predecessor framed charges for the offence under Sections 392/394/34 IPC against the accused persons Kamlesh and Babloo. A separate charge for the offence u/s.397 IPC was framed against the accused Kamlesh Kumar on 22.12.2008. A charge for the offence u/s.411 IPC was also framed against the accused Rakesh. However, accused persons pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence, however, before statement of PW's could be recorded accused Babloo, who was released on bail vide order dated 09.01.2009, again absconded himself and he was declared PO vide order dated 03.04.2010.
8 The prosecution has examined eleven witnesses in support of its case.
9 The PW1 Kailash Chand is the complainant in the present case. He deposed as per his complaint Ex.PW1/A with several improvements in as much as he stated that when he resisted his assailants, the driver took an iron rod and hit the same upon mouth of PW1 while the other person sitting in TSR, hit PW1 with a piece of wooden danda on his head and that due to beatings given by the accused persons, four S.C. No. 56/08 : State vs. Kamlesh Etc. : Page 4 of 19 lower front teeth of PW1 were broken and blood started oozing from his head. He also stated that he was robbed of a sum of Rs.1,300/, I Card, wrist watch, lunch box, black coloured bag and a mobile phone make Nokia. He further stated that he gave IEMI number of his phone to Police later on and that of 04.04.2008 he had visited Tihar Jail and identified accused who robbed his Nokia mobile phone and injured him with an iron rod and was driving an auto at the time of incident.
10 The complainant identified his mobile phone. He also identified accused Kamlesh as accused identified by him in TIP proceeding. Surprisingly he then identified accused Rakesh as the person who was driving the TSR and said that accused persons had robbed him and caused injuries to him with iron rod and wooden danda. During his crossexamination on behalf of accused Kamlesh and Rakesh certain improvements were brought out in examination in chief of PW1 over and above his complaint Ex.PW1/A in as much as in the latter he did not state that he had objected when auto driver allowed another person to sit in TSR and that he was hit by a wooden danda on his head and that he was also robbed of his wrist watch. 11 The PW1 also stated that it was dark at the time of incident and only light available was coming from the head lights of passing vehicles. He denied that many vehicles were coming and going at that time. He volunteered to state that rarely any vehicle was passing through at that time. During his further crossexamination, PW1 stated that his clothes became blood stained with blood oozing from his head and that they further got dirty when he fell on the ground. He also stated that he did not ask for S.C. No. 56/08 : State vs. Kamlesh Etc. : Page 5 of 19 mobile phone, to call the Police, from the boys who had dropped him home and that he reached home between 11:30 PM to 12 midnight and that at that time his wife and son were present. The PW1 could not remember if his wife and son had tried to call any doctor or to inform the Police at that time. The PW1 further stated that he had told the Police that two boys had dropped him at his house in a TSR or by some other means. The PW1 denied that he way lying in drunken state at Mukandpur Chowk or that he was unable to state who had robbed him. The PW1 admitted that he had not given the description of accused persons in his statement. The PW1 denied that accused Kamlesh was shown to him at PS by police on 03.04.2008, prior to his TIP on 04.04.2008. 12 The PW2, Amit Niman, is the son of PW1 and owner of mobile phone set black colour make Nokia1600 having IEMI number 355508014887601. He stated that said phone was being used by his father Kailash Chand, who was robbed of it on 12.01.2008 and that he had give photocopy of bill No.1208, vide which he had purchased the said mobile phone, to the Police on 04.04.2008 and that the same was seized by the Police vide memo Ex.PW2/A. He also proved the superdginama, vide which he had got his mobile phone released from Court, as Ex.PW2/B and the photocopy of bill of purchase of said phone as Ex.PW3/C by producing the original bill. The mobile phone too was identified by PW2 as Ex.P1.
13 The PW3 HC Balraj Singh is the duty officer. He proved the copy of FIR as Ex.PW3/A. S.C. No. 56/08 : State vs. Kamlesh Etc. : Page 6 of 19 14 The PW4 HC Jagdish was posted at PS Ashok Vihar and had taken complainant Kailash Chand, his statement and MLC to PS Adarsh Nagar, as per direction of SI Haroon Ahmad, and produced them before SHO, PS Adarsh Nagar and deposed regarding the same.
15 The PW5, SI Haroon Ahmad, was posted at and was present at PS Ashok Vihar when complainant Kailash Chand reached there in an injured condition with history of receiving said injuries in a robbery. He deposed that he took injured for his medical examination to BJRM hospital and thereafter they returned to PS where PW5 recorded statement of injured vide Ex.PW1/A and attested the same. He further deposed that as spot of incident fell within jurisdiction of PS Adarsh Nagar, he sent complainant Kailash Chand along with his statement and MLC with Ct. Jagdish to be produced before SHO PS Adarsh Nagar.
16 The PW6, Dr. Neeraj Choudhary, was deputed in place of Dr. Navneet, Dr. Sunesh and Dr. Sardhman, who had examined the injured in the present case. He deposed that patient Kailash Chand was brought to Casualty on 13.01.2008 and was examined by Dr. Navneet vide MLC No.21659. As per observations made by Dr. Navneet, the patient had a lacerated wound over the noise, lacerated wound over lower lip, bruise over right eye, bruise over occipital region, loosening of the third tooth on lower jaw, one lower molar tooth lost and that the patient was referred to Dental Surgery and ENT.
S.C. No. 56/08 : State vs. Kamlesh Etc. : Page 7 of 19 17 The PW6 further deposed that the patient was then examined by Dr. Sunesh, who referred him to surgical OPD and also advised patient to come for dental and ENT (OPD) and that the MLC of the patient was prepared under supervision of Dr. Sardhman. The PW6 identified handwriting and signatures of Dr. Navneet, Dr. Sunesh and Dr. Sardhman on MLC of the patient and proved the same as Ex.PW6/A. The PW6 also proved ME No.6558 (Ex.PW6/B) of patient Rakesh prepared by Dr. Kamal, ME No.6669 (Ex.PW6/C) of Rakesh Kumar prepared by Dr. Nadeem, ME No.9418 (Ex.PW6/D) of patient Kamlesh prepared by Dr. Mayank, ME No.9795 (Ex.PW6/E) of patient Kamlesh prepared by Dr. Nadeem, by identifying the handwriting and signatures of respective doctors thereupon.
18 During his crossexamination PW6 stated that injuries mentioned in MLC Ex.PW6/A were not possible by a fall on a hard surface. He termed it correct that patient examined vide MLC Ex.PW6/A had not been examined in his presence and that he did not have any personal knowledge about the case.
19 The PW7, HC Baljeet Singh, had joined investigations with IO ASI Gopi Ram in arrest proceedings of accused Kamlesh. He deposed that on 21.02.2007 he accompanied ASI Gopi Ram to Rohini Court where on production of accused Kamlesh, IO ASI Gopi Ram arrested and interrogated accused Kamlesh after seeking permission from the concerned Court. He proved the arrest memo of accused Kamlesh as Ex.PW7/A and his disclosure statement as Ex.PW7/B. He further deposed that accused Kamlesh was taken on two days PC Remand by the IO during which he pointed S.C. No. 56/08 : State vs. Kamlesh Etc. : Page 8 of 19 out the place of occurrence vide pointing out memo Ex.PW7/C. The PW7 then deposed that on 04.04.2008 he again joined investigations of the present case with IO SI Sewa Singh and that on that day, complainant Kailash Chand produced photocopy of bill of purchase of mobile phone i.e. Ex.PW2/C which was seized by the IO vide seizure memo Ex.PW2/A. A leading question was put to the witness by learned Additional PP regarding the person, who had produced the bill of purchase of mobile phone. The PW7, however, denied that bill Ex.PW2/C was produced by Amit, son of the complainant.
20 The PW8, Dr. Rajesh Kumar Goel, learned Secretary, DLSA (North), then learned MM Rohini, had conducted the TIP proceedings of accused Kamlesh Kumar on 04.04.2008 in the present case. He proved the statement of complainant as Ex.PW8/A whereby complainant had identified the accused. He also proved the TIP proceedings as Ex.PW8/B and the application of IO for supply of copy of TIP proceedings as Ex.PW8/C. 21 The PW9, HC Azad Singh, was member of the police team which had apprehended the accused Rakesh on 04.02.20008. He deposed that on 04.02.2008 he was posted at AATS Crime Branch, R.K. Puram, New Delhi, and on that day he received secret information that two persons namely Rakesh and Ram Niwas, who used to sell and purchase stolen articles and also looted passengers in TSRs and buses by offering them tea laced with intoxicants would be coming in front of BJRM Hospital for selling some articles on that day at 7:00 PM and accordingly, PW9 conveyed the said S.C. No. 56/08 : State vs. Kamlesh Etc. : Page 9 of 19 information to his senior officers, who directed that a raid be conducted immediately. Thereafter SI Naresh Sangwan constituted a raiding party comprising of himself, SI Virender, ASI Brahm Prakash, ASI Dharambir, HC Nanank, HC Bhim Singh, HC Sunder, HC Amar Chand, Ct. Satpal, Ct. Govind and PW9 and the secret informer and at about 6:45 PM, accused Rakesh and Ram Niwas were arrested at the pointing out of the secret informer. The PW9 gave details of the articles recovered from the search of accused Rakesh and Ram Niwas and stated that one mobile phone was also recovered during the search of accused Rakesh and that accused Rakesh told them that he had purchased the same for Rs.500/ knowing that it was a stolen one and that on checking the IEMI number of said phone, they came to know that a case had already been registered regarding theft of the said mobile phone at PS Adarsh Nagar. The PW9 proved various memos pertaining to seizure of the articles, arrest and personal search of accused Rakesh as Ex.PW9/A to Ex.PW9/C and the disclosure statement of accused Rakesh as Ex.PW9/G. He further deposed about the recoveries effected from accused Ram Niwas and that information regarding recovery of mobile phone was given to Police officials of PS Adarsh Nagar.
22 During his crossexamination, PW9 stated that they had not informed the officials of PS Jahangir Puri about the information regarding the accused persons. He further stated that public persons were asked to join investigation at T point Azad pur but they had refused for the same and that there were no guard was present at the gate of BJRM Hospital from front of which accused Rakesh and coaccused Ram Niwas were arrested. From further crossexamination of PW9, it is brought out that accused S.C. No. 56/08 : State vs. Kamlesh Etc. : Page 10 of 19 Rakesh did not put up any resistance when he was apprehended by PW9, after being chased by PW9, for 8 - 10 steps.
23 The PW10, HC Rishi Ram was member of the police party which had apprehended accused Bablu. He deposed that on 26.07.2007 he was posted with Special Staff Outer District and that on that day he along with HC Yogesh, Ct. Gajender, Ct. Devraj, Ct. Hari Chand and Ct. Munish were present at Jaipur Golden Jhuggies and that at about 6:00 - 6:15 PM, PW10 received secret information that accused Bablu, who was involved in the present case would be coming at Sector 5 / 6, Rohini, and on receiving this information, the police party went to Vishram Chowk and apprehended the accused at about 6:30 PM u/s.41.1 (a) CrPC and that thereafter accused made a disclosure statement Mark "A" and was arrested vide arrest memo Mark "B" and was then taken for his medical examination from where he was taken to Police lock up. The PW10 further stated that he had made DD No.11 dated 26.07.2008 i.e. Mark "C" regarding arrest of accused and arrival of PW10 at PS and that on the next day accused Bablu was produced before the concerned Court where he was formally arrested and interrogated by the IO of the present case with the permission of the Court. As accused Bablu was P.O., the witness could not identify the said accused. 24 The PW11, SI Sewa Singh, is one of the IOs of the case. He deposed that on 20.03.2008 investigations of the present case were marked to him and that after going through the case file, he moved an application for TIP of accused Kamlesh on 30.04.2008 and that the TIP of accused was got conducted on 04.04.2008 wherein S.C. No. 56/08 : State vs. Kamlesh Etc. : Page 11 of 19 complainant correctly identified the accused Kamlesh and that he also obtained the copy of the said proceedings. He proved the application for TIP proceedings as Ex.PW8/C, TIP proceedings as Ex.PW8/B and his application for obtaining copy of TIP proceedings as Ex.PW11/A. He also stated that he had obtained Ex.PW2/L i.e. invoice / cash memo of mobile phone from complainant and seized the same vide seizure memo Ex.PW2/A and that after completion of investigations, he filed the charge sheet before the Court.
25 During his crossexamination PW11 was put a specific question if the accused Kamlesh was produced before learned MM in muffled or unmuffled face on 03.04.2008 to which PW11 replied by stating that he could not admit or deny if accused Kamlesh was produced before learned MM in unmuffled face. When the witness was shown TIP proceedings Ex.PW8/A, it was found that his signatures identifying the witness Kailash Chand were amiss from said TIP proceedings. The PW11 denied that he had not participated in the TIP proceedings and that is why the same did not bear his signatures.
26 Since the IO of the case namely ASI Gopi Ram was stated to have expired on 30.07.2009, and all remaining witness stood examined learned Additional PP closed PE on 09.10.2012 27 After recording of prosecution evidence, statements of the accused persons u/s 313 Cr. P. C. were recorded. Accused Kamlesh and Rakesh Kumar denied all the S.C. No. 56/08 : State vs. Kamlesh Etc. : Page 12 of 19 allegations and stated that they are innocent and had been falsely implicated in the case and had nothing to do with the offence in the present case. Both the accused persons Kamlesh and Rakesh Kumar did not lead any evidence in their defence. 28 Arguments have been put forward by Ld. Addl. PP for State as well as Ld. Amicus Curie for both the accused persons.
29 Learned Additional PP has stated that prosecution has succeeded in proving its case against the accused persons beyond reasonable doubt and hence accused persons be held guilty of the charged offences.
30 On the other hand learned Amicus Curie for both accused persons has filed written submissions and has further contended that prosecution has failed to prove its case against the accused persons. It is further contended that both the accused persons have been falsely implicated in the present case without any effort being made by the IO to nab the actual culprits and it is accordingly, prayed that accused persons be acquitted of the charged offences in the present case.
31 I have heard the arguments put forward by ld. Addl. PP and learned Amicus Curie for the accused persons and have carefully gone through the record of the case. I have also carefully considered the evidence adduced by the prosecution in support of its case and the written submissions filed on behalf of accused persons. S.C. No. 56/08 : State vs. Kamlesh Etc. : Page 13 of 19 32 In the present case, complainant is the only witness, who could link the accused persons with offence (s) alleged against them. The incident wherein complainant Sh. Kailash Chand was robbed of his money and other articles and was injured by his assailants took place on 12.01.2008 at about 11:00 PM. The FIR was registered on 13.01.2008 at about 7:30 PM. The complainant has stated in his statement Ex. PW1/A that he was indisposed at night and hence he went to PS Ashok Vihar next morning. It also appears from record that complainant had gone to PS Ashok Vihar from where he was sent to B J R M hospital for medical examination but later on he was sent to PS. Adarsh Nagar alongwith his MLC, as it was PS Adarsh Nagar which had jurisdiction over the area in which the incident had taken place. However, despite this the delay in lodging of FIR does not stand explained satisfactorily. There is no explanation why wife and son of complainant did not inform the police or arrange for some sort of medical aid for the complainant, who apparently had returned home badly injured after the alleged incident. It is note worthy that the Amit Niman, son of PW1, has been examined as PW2 but he does not clarify this aspect in his deposition before the court.
33 Further in the present case accused Kamlesh was first one to be arrested when information about his arrest in case FIR No. 595/06, U/S 379/411 IPC registered at PS Darya Ganj was received by ASI Gopi Ram on 12012008. The accused Kamlesh on his arrest on 21022008 disclosed in his disclosure statement Ex. PW7/B that he had committed offence in present case with co accused Babloo. As submitted by learned amicus curie there is no explanation why accused Kamlesh was arrested in S.C. No. 56/08 : State vs. Kamlesh Etc. : Page 14 of 19 the present case on 21022008 even though information about his arrest and involvement in this case was received by IO ASI Gopi Ram as far back as on 12012008. Further as per Ex. PW8/C the application for TIP of accused Kamlesh was moved only on 03.04.2008 and his TIP was held on 04.04.2008 wherein he is stated to have been identified by the complainant. There is specific endorsement dated 03.04.2008 by ld. MM on Ex. PW8/C that accused Kamlesh was produced before him in an unmuffled face. The proceedings for TIP of the accused Kamlesh were initiated after about delay of 1 ½ months of his arrest and even then he was produced before the concerned court in an unmuffled face and in these circumstances the TIP of the accused Kamlesh is not of much evidentiary value and possibility of accused being shown to witness / complainant in the court, prior to TIP cannot be ruled out. I am supported in my view by judgment in case of Lila Ram Vs. State, 1990 Crl. L.J. 296. In the said case, the accused had refused to participate in TIP. It was held that accused were justified in doing so since even a mere possibility that accused was or could have been shown would be sufficient justification for refusal to participate in identification proceedings. In the said case, Court further held that, "People have mistakenly identified friends and relations well known to them with sufficient frequency to make them question the propriety of convicting an accused person on nothing more than visual identification of a single witness who may only have had a fleeting glance of him in poor light."
S.C. No. 56/08 : State vs. Kamlesh Etc. : Page 15 of 19 34 Moreover the complainant himself is not sure about the identity of accused Kamlesh. He has also made unexplained improvements in his deposition before court as PW1 over and above his complaint Ex. PW1/A. In his complaint Ex. PW1/A complainant does not give any description of his assailants or role played by each one of them. He merely states that when he tried to raise alarm, one of them gave a blow on his head with an iron rod. In his testimony as PW1, however, complainant stated that when he resisted, the driver took an iron rod and hit same upon mouth of PW1 while the other person sitting in TSR, hit PW1 with a piece of wooden danda on his head. He also deposed that he had gone to Tihar Jail on 04042008 and identified the accused who had robbed his Nokia Mobile phone and injured him with iron rod and was driving auto at the time of incident. He then identified accused Kamlesh as the accused identified by him in TIP proceedings, however, he went on to identify accused Rakesh as person who was driving the TSR and further stated that accused persons had robbed him and caused injuries to him with iron rod and wooden danda. 35 This introduction of another weapon of offence, namely danda, and specifying role of his assailants, specially TSR driver was not explained satisfactorily by the prosecution. Further identifying accused Kamlesh as driver of TSR and then accused Rakesh also as driver of TSR creates doubt whether witness was actually capable of identifying his assailant or not. It is worth while to note that only role attributed to accused Rakesh, by the prosecution, is that he had bought, the robbed mobile phone of complainant, from accused Kamlesh knowing or having reason to believe the same to be a robbed property. It is not the case of prosecution that accused S.C. No. 56/08 : State vs. Kamlesh Etc. : Page 16 of 19 Rakesh was present at the spot or that he was involved in the incident of robbing itself. Hence identification of accused Rakesh as one of the assailants, by the complainant, creates considerable doubt regarding the prosecution case. Further accused Babloo the other assailant / robber was arrested on 12012008 and his supplementary charge sheet was also filed before the court. From perusal of supplementary charge sheet it appears that TIP of accused Babloo was got conducted where accused Babloo refused for his TIP on 02.08.2008, however, IO recorded supplementary statement of complainant identifying the said accused. Thus in all complainant identified three persons as his assailants whereas as per prosecution case there was only two assailants . 36 In view of these facts and circumstance, other facts which emerged from cross examination of PW1 viz it being dark at the time of incident and only light available being the light coming from the head lights of passing vehicles and rarely any vehicle passing through at that time become very relevant . A doubt is created whether complainant had any occasion to register faces of his assailants in his memory sufficiently to be able to identify them later. This coupled with the manner in which TIP of accused Kamlesh was got conducted by the investigating officer, creates a doubt regarding identity of accused by the complainant in the TIP and then in the court wherein also complainant ended up assigning same role to two different accused person i.e. accused Kamlesh and accused Rakesh.
37 The prosecution case is further vague regarding the nature of injuries S.C. No. 56/08 : State vs. Kamlesh Etc. : Page 17 of 19 sustained by PW1 Kailash Chand. His MLC Ex. PW6/A does not find any mention of nature of injuries sustained by him not does it give any clue about the weapon(s) with which the same could have been caused. Moreover as per PW1, he was given one blow with iron rod on his mouth and another blow with wooden danda on his head where as his MLC shows six injuries. Thus the injuries reflected from MLC of PW Kailash Chand do not corroborate with his ocular testimony. 38 Coming to recovery of mobile phone alleged to have been robbed from complainant on one day of the incident. In his complaint Ex. PW1/A the complainant does not give any description , colour, make etc of his mobile phone. The said mobile phone is alleged to have been recorded from possession of accused Rakesh when he was detained on 05022008 u/s 41.1(D) and S. 102 Cr.PC by AATS/Crime Branch, R K Puram and the details of mobile phone i.e. its make Nokia 1600 and its IMEI number was conveyed to and was within knowledge of to ASI Gopi Ram when he arrested accused Rakesh and seized mobile phone Ex. P1. No TIP of said mobile phone was got conducted by the IO. The bill of purchase of said mobile phone Ex. PW2/C was seized by the IO vide memo Ex. PW2/A only on 04042008 much belatedly. Even there after neither the said bill was verified by the IO nor was the owner of shop, from where said phone is stated to have been purchased, cited as witness. No effort was made by the IO to trace out call details or to otherwise establish link between accused Rakesh and the mobile phone. Thus the question of tampering with the case property and / or manipulation of bill Ex.PW2/C cannot be ruled out.
S.C. No. 56/08 : State vs. Kamlesh Etc. : Page 18 of 19 39 Thus, in view of the above discussion and observations and having regard to the fact and circumstances of the present case, I am of the considered opinion that the prosecution has failed to prove the guilt of the accused persons on record, beyond the reasonable doubts. Accordingly, I acquit accused Kamlesh and Rakesh Kumar of the charged offences, giving them the benefit of doubt.
File be consigned to the Record Room.
(Announced in the open Court ) (Illa Rawat)
(Today on 15.02.2013) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
S.C. No. 56/08 : State vs. Kamlesh Etc. : Page 19 of 19
FIR No. 15/08
P.S. Adarsh Nagar
State Vs. Kamlesh Etc.
15.02.2013
Present : Ld. Additional PP for the State.
Both accused on bail with counsel Sh. Rajnish Kumar Antil, learned Amicus Curie.
Learned Additional PP has addressed arguments. Learned counsel for accused persons had already filed written submission and addressed arguments on 06.02.2013.
Judgment shall be passed during the course of the day.
ASJ (NorthWest)01
Rohini/Delhi
15.02.2013
At 3:30 PM
Present : As before.
Vide separate judgment, announced today in the open Court, both the accused persons have been acquitted of the charged offence.
Both the accused request that their previously furnished bail bonds may be accepted in compliance of Section 437A Cr.PC. Request allowed. Accordingly, previous bail bonds of both the accused persons are extended for a period of six months from today in terms of Section 437A CrPC.
File be consigned to Record Room.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 15.02.2013 S.C. No. 56/08 : State vs. Kamlesh Etc. : Page 20 of 19