Delhi District Court
State vs Rahul Sharma on 1 August, 2015
FIR No.99/12 PS : Harsh Vihar
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI.
FIR No. : 99/12
Under Section : 394/397/411/34 IPC
Police Station : Harsh Vihar
Sessions Case No : 93/14
Unique I.D. No. : 02402R070982013
In the matter of :-
STATE
VERSUS
1. Rahul Sharma
S/o. Sh. Ram Chander Sharma,
R/o. Tilak Ram Colony, Durga Mandir Wali Gali,
Village Behta Hazipur, PS Loni, District Ghaziabad, U.P.
2. Netra Pal
S/o Sh. Ramesh Chand,
R/o. H.No.353, Gali No.2, Tilak Ram Colony,
Village-Behta Hazipur, PS Loni, District Ghaziabad, U.P.
............Accused persons
Date of Institution : 06.03.2013
Date of Committal : 09.05.2013
Date of receiving in this Court : 12.02.2014
Date of reserving judgment : 27.07.2015
Date of pronouncement : 01.08.2015
Decision : Acquitted
(Section 437-A Cr.P.C complied with)
JUDGMENT
THE CASE SET UP BY THE PROSECUTION :-
1. On 29.09.2012, at around 02:00 PM, complainant Pawan Sharma was (Pulastya Pramachala) Page no. 1 of 10 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.99/12 PS : Harsh Vihar going to meet his brother-in-law namely Sh. Sunil Sharma (PW-2) via Mandoli Chungi towards Mandoli Shamshan Ghat. He was moving under flyover on the service road, when two boys confronted him and had quarreled with him. They pushed the complainant on the ground and one of them had inflicted knife injury below his left armpit, while the another boy had removed his purse from the pocket of his pant. They had also taken away his mobile phone make Wing duel SIM. Both the robbers fled away and complainant looked for his brother-in-law, who met him at the same place. Thereafter, Sunil Sharma took the complainant to GTB hospital. Sunil Sharma had made call at 100 number, which was forwarded to PS Harsh Vihar and this information was recorded vide DD No.18-A. ASI Sohan Singh was assigned this call, who first of all visited Fanne Khan Road near a shop of doctor and then he came to know that injured was already taken to GTB hospital.
He recorded statement of complainant in GTB hospital. However, at that time complainant had not given complete and correct statement. He again gave his supplementary statement before IO. IO had put the mobile phone of complainant on track and came to know that it was being used on mobile no.8802415174. IO made contact on this number and reached the house of accused Netrapal, who had disclosed that this mobile phone was purchased by him from accused Rahul Sharma on 29.09.2012. Thereafter, at the instance of Netrapal, IO arrested Rahul Sharma, who disclosed that he had robbed the complainant along with his friend JCL Arun Kumar. He had removed the purse of complainant, while Arun had inflicted knife injury upon the complainant. Rahul Sharma got recovered a purse from his house, which contained (Pulastya Pramachala) Page no. 2 of 10 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.99/12 PS : Harsh Vihar Rs.20/- in cash and several documents including visiting card of Mr. Javed. Later on, JCL was also arrested, who was produced before JJB. IO chargesheeted accused Netrapal and Rahul Sharma for offences under Section 394/397/411/34 IPC. CHARGE :-
2. Charges were framed against both accused persons on 12.08.2013 for offences punishable under Section 394/397/34 IPC, to which they pleaded not guilty and claimed trial.
3. It was alleged against both accused persons that on 29.09.2012, at about 02:00 PM, under Mandoli Flyover, near Shamshan Ghat, within the jurisdiction of PS Harsh Vihar, in furtherance of their common intention, they both had committed robbery of a mobile phone and purse containing some visiting cards and cash amount of Rs.250/- from the possession of Pawan Sharma, S/o. Sh. Ram Gopal and caused him injury with a knife, which they were possessing and used in the commission of robbery and thus, they committed offences punishable under Section 394/397/34 IPC.
PROSECUTION EVIDENCE :-
Prosecution examined 11 witnesses in support of its case.
PW Name of Role of witness Proved document/article
No. Witness
PW-1 Sh. Pawan Complainant/ Statement i.e. Ex.PW-1/A, packing
Sharma injured, who box of robbed mobile phone i.e.
narrated incident Ex.P-1, robbed duel SIM mobile
in question to make of Wing with battery i.e.
IO/SI Sohan Ex.P-2 and robbed purse i.e.
Singh. Ex.P-3.
(Pulastya Pramachala)
Page no. 3 of 10 ASJ (Shahdara)
Karkardooma Courts / Delhi
FIR No.99/12 PS : Harsh Vihar
PW-2 Sh. Sunil Brother-in-law of
Sharma injured/PW-1, who
took him to the
hospital and
made a call at
100 number
PW-3 Ct. Manish He accompanied Sealed parcel which was given by
Kumar IO/SI Sohan Duty Constable to IO/SI Sohan
Singh to the spot Singh at GTB hospital i.e.
and hospital and Ex.PW-3/A.
took rukka to the
PS and got
registered the FIR
in the present
case.
PW-4 HC Jagdev He joined Arrest memo of accused Netrapal
Kumar investigation with @ Tinku i.e. Ex.PW-4/A, personal
IO/SI Sohan search memo of accused Netrapal
Singh on @ Tinku i.e. Ex.PW-4/B, seizure
04.10.2012. memo of robbed mobile phone i.e. Ex.PW-4/C, disclosure statement of accused Netrapal @ Tinku i.e. Ex.PW-4/D, Arrest memo of accused Rahul i.e. Ex.PW-4/E, personal search memo of accused Rahul i.e. Ex.PW-4/F, disclosure statement of accused Rahul i.e. Ex.PW-4/G, seizure memo of robbed purse i.e. Ex.PW-4/H, pointing out memo i.e. Ex.PW-4/I, PW-5 HC Dinesh He was duty Print out of FIR i.e. Ex.PW-5/A and Kumar officer in PS endorsement on rukka i.e. Ex.
Harsh Vihar on PW-5/B
29.09.2012 from
4 PM to 12 AM.
(Pulastya Pramachala)
Page no. 4 of 10 ASJ (Shahdara)
Karkardooma Courts / Delhi
FIR No.99/12 PS : Harsh Vihar
PW-6 Sh. Shishir He proved CAF, Reply to requisition of IO i.e.
Malhotra certificate under Ex.PW-6/A, certificate under
Section 65-B of Section 65-B of Evidence Act i.e.
Evidence Act, Ex.PW-6/B, CDRs of mobile no.
CDRs and Cell ID 8802415174 from period
Chart of mobile 30.09.2012 to 01.10.2012 i.e.
no.8802415174 of Ex.PW-6/C, true copy of the
Aircel Limited. original CAF i.e. Ex.PW-6/D and
Cell ID Chart i.e. Ex.PW-6/E.
PW-7 Dr. He identified MLC of injured Pawan Sharma i.e.
Parmeshwar handwriting and Ex.PW-7/A, copy of discharge slip
Ram signature of Dr. of injured Pawan Sharma i.e. Ex.
Ranjeet Kumar, PW-7/B and emergency notes i.e.
who examined Ex.PW-7/C.
injured PW-1/
Pawan Sharma
on 29.09.2012.
PW-8 Sh. Ankur Conducted TIP TIP proceedings of both accused
Jain proceedings of i.e. Ex.PW-8/A and certificate
accused Rahul regarding correctness of
and Arun. proceedings i.e. Ex.PW-8/B.
PW-9 SI Sohan IO of the case True copy of DD No.18-A i.e. Mark
Singh P-9/A, endorsement on statement
of injured i.e. Ex.PW-9/A, site plan
i.e. Ex.PW-9/B and sketch memo
of knife recovered from Shamshan
Ghat at the instance of accused
Arun i.e. Ex.PW-9/C.
PW-10 Sh.V.K. Rai Proved CAF of CAF i.e. Ex.PW-10/A and copy of
mobile number i.e voter ID card i.e. Mark PW-10/A. 9968628030 of MTNL, which was subscribed by Sh.
Sunil Sharma (Pulastya Pramachala) Page no. 5 of 10 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.99/12 PS : Harsh Vihar PW-11 HC Tejbir He was duty Photocopy of DD No.18-A i.e. Ex.
Singh officer in PS PW-11/A.
Harsh Vihar on
29.09.2012 from
8 AM to 4 PM.
PLEA OF ACCUSED UNDER SECTION 313 CR.P.C. :-
4. In his statement under Section 313 Cr.P.C, accused Rahul pleaded that he was lifted from his house on 03.10.2012 by the police and the purse was planted upon him. He further pleaded that he was falsely implicated because some secret informer of his area led the police to lift any person without any reason. Similar plea was taken by accused Netrapal, who pleaded that the mobile phone was not in his possession and it was planted upon him. He further took plea that he did not have any connection with mobile no. 8802415174 and photograph of the application for this number pertained to his mother, but he did not know how it appeared on this application.
FINDINGS AND APPRECIATION OF EVIDENCE AS WELL AS ARGUMENTS :-
5. PW-1 was the only star witness of the prosecution so as to narrate the incident and to point out the assailants/robber. According to his testimony, on 29.09.2012 at about 02:00 PM, he was going to Prem Nagar via Mandoli Chungi to meet his brother-in-law namely Sunil Sharma (PW-2). When he reached under flyover on the service road, two boys came in front of him and touched his shoulder. They started quarreling with him. One of them caught hold of him from behind and another gave a knife blow under his left armpit. The first boy removed his purse from the pocket of his pant. Thereafter, both the boys ran (Pulastya Pramachala) Page no. 6 of 10 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.99/12 PS : Harsh Vihar away. He searched for his brother-in-law and found him under the flyover, who took him to a private hospital and thereafter, to GTB hospital. His purse contained Rs. 250/- in cash besides some visiting cards. Sunil Sharma (PW-2) informed at 100 number and police met him at GTB hospital, wherein his statement was recorded i.e. Ex.PW-1/A. On demand of police, he handed over box of mobile phone to the police, wherein IMEI number was mentioned. Later on, he came to know that accused persons were arrested by the police and he was asked to join the proceedings. He was also asked to join TIP of his mobile phone, but he refused for the same on the ground that he had already furnished IMEI number of his mobile phone. He deposed that he could not identify the accused persons. He further deposed that he was using mobile number i.e. 9968628030 on his mobile phone. He identified the mobile phone, which was produced before the Court by MHC(M) with seal of 'SS'. This mobile phone was having IMEI number as 357356049492049 and 357356049492056. MHC(M) also produced a purse in unsealed condition, which contained visiting card of Javed and other documents and the same was also identified by this witness to be belonging to him.
6. Ld. defence counsel submitted that neither accused Netrapal nor Rahul Sharma was involved in this incident and both of them were falsely implicated by police, after planting a mobile phone and a purse on these accused persons. He challenged the recovery proceedings of the mobile phone as well as the purse from accused Netrapal and Rahul Sharma.
7. On the other hand, ld. Addl. PP submitted that the recovery of mobile (Pulastya Pramachala) Page no. 7 of 10 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.99/12 PS : Harsh Vihar phone belonging to complainant/PW-1 from accused Netrapal and recovery of purse belonging to PW-1 from accused Rahul Sharma established that these two accused persons were involved in this case and PW-1 did not identify them out of a settlement with these accused persons.
8. As far as involvement of accused Netrapal and accused Rahul Sharma in the incident of robbery is concerned, there is no direct evidence to connect their involvement in this robbery. PW-1 did not identify these accused persons as robbers. The indirect evidence as projected by ld. Addl. PP is dependent upon the credibility of recovery proceedings.
9. PW-4/HC Jagdev Kumar and PW-9/SI Sohan Singh are the relevant witnesses, through whom prosecution proved the recovery proceedings. According to PW-4, on 04.10.2012 he joined investigation of this case along with PW-9/ASI Sohan Singh. IO/PW-9 arrested accused Netrapal from Tilak Ram Colony, Loni and thereafter, recovered mobile phone from him. IO recorded disclosure statement of accused Netrapal and at his instance he arrested accused Rahul Sharma form Tilak Ram Colony, Loni. Accused Rahul Sharma produced a purse from his house, which contained two currency notes of Rs.10/-
and certain visiting cards. The purse was converted into pullanda and was sealed with the seal of 'SS'. Thereafter, at the instance of Rahul Sharma another JCL Arun Kumar was also arrested by IO.
10.Same facts were deposed by PW-9/SI Sohan Singh. However, in cross-
examination by defence, PW-4/HC Jagdev deposed that on 04.10.2012, they left PS at about 02:00 PM in a private Maruti 800 car. According to him, they remained at the house of Rahul up to 05:00 PM.
(Pulastya Pramachala) Page no. 8 of 10 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.99/12 PS : Harsh Vihar On the other hand, PW-9/SI Sohan Singh deposed that on 04.10.2012 they left PS at 08:00 AM in a private Maruti van and they remained at the house of accused Rahul Sharma up to 11:00 AM. Thus, there is a sharp contrast in the given description of vehicle and time of this raid conducted by PW-9 along with PW-4. Furthermore, apparently PW-9 was not chasing any offender immediately after offence, still he admittedly did not make any entry in the local police station of Loni, U.P before or after his visit. They claimed that PW-9 had made a departure at PS Harsh Vihar, but even copy of that DD entry was not proved on the record. Admittedly, PW-9 did not join any public witness in the so called recovery proceedings. Therefore, I find that the recovery proceedings projected by the prosecution cannot be relied upon.
11. Furthermore, according to PW-9, the mobile phone was used by accused Netrapal with connection no. 8802415174. PW-6 was the Nodal Officer from Aircel Limited, who proved CDRs along with certificate under Section 65-B of Evidence Act, of this connection number for period 30.09.2012 to 01.10.2012. From the perusal of CDR, I find that the IMEI number of the mobile set used for this particular connection number does not tally with the given IMEI number of allegedly robbed mobile phone. Therefore, plea of PW-9 that this mobile phone was used by accused Netrapal and on this basis he could reach him and nab him, is falsified.
12.Thus, on the record I do not find any credible evidence, which could point out towards both accused persons to establish that they were the robbers or to establish that allegedly robbed mobile phone and purse belonging to PW-1 were found in their possession. In fact, the purse (Pulastya Pramachala) Page no. 9 of 10 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.99/12 PS : Harsh Vihar was alleged to be sealed by IO/PW-9 with seal of 'SS', which was found containing Rs.20/- and several visiting cards including a visiting card of Javed. However, such purse was not found in sealed condition, since the time of its first production before the Court. Prosecution did not offer any explanation for this condition of purse. Hence, case of prosecution is not proved beyond doubts.
DECISION :-
13. In view of my foregoing discussions, both accused persons are acquitted of all the charges leveled against them.
Announced in the open court (PULASTYA PRAMACHALA)
today on 01.08.2015 Additional Sessions Judge (Shahdara),
(This judgment contains 10 pages) Karkardooma Courts, Delhi
(Pulastya Pramachala)
Page no. 10 of 10 ASJ (Shahdara)
Karkardooma Courts / Delhi