Delhi District Court
State vs . Yashpal @ Sunny & Anr. on 10 January, 2020
IN THE COURT OF SHRI SANJAY SHARMAI :
DISTRICT JUDGE (COMMERCIAL COURT)
(EAST DISTRICT)
KARKARDOOMA COURTS : DELHI
SC No. 398/2016
State Vs. Yashpal @ Sunny & Anr.
FIR No. 922/2015
PS Nand Nagari
Under Section 394/397/201/411/34 IPC
State Versus 1. Yashpal @ Sunny S/o Nannu @ Satbir
R/o Hose No. E2/44 Juggies,
Nand Nagari, Delhi.
2. Sanjay @ Deepu @ Debu @ Sandeep
S/o Omi
R/o House No. 170, MCD Flats,
E Block, Nand Nagari, Delhi.
Date of institution : 10.11.2015
Date of reserving judgment : 20.12.2019
Date of judgment : 10.01.2020
JUDGMENT:
On 11.09.2015, Jitender, a driver by profession, was returning home from Sunder Nagari via District Park, Nand Nagari. He met Sunny and Debu in the park, who both were known to him as they used to meet him in the said park. Sunny stopped him and demanded whatever was in his pocket. Jitender told him that he was not having anything. Hearing this, Sunny placed a Katta on his temple and Debu took out his purse from his back pocket if his wearing pant. It was containing cash Rs. 2,000/ and his Driving License. When Jitender resisted their acts, Sunny inflicted a blow on his head with the butt of the Katta and then both of them fled away. Jitender started bleeding from his SC No. 398/16 FIR No. 922/15 State Vs. Yashpal @ Sunny & anr. PS Nand Nagri Page 1 of 10 head. He called the Police on 100 number. PCR arrived at the spot and took him to GTB hospital. After getting the treatment, Jitender went to PS Nand Nagari and lodged a formal complaint on which FIR No. 922/2015 was registered under section 394/397/34 IPC.
During investigation, both the accused Yashpal @ Sunny and Sanjay @ Depu @ Deva were arrested on the identification of the complainant Jitender. A cash amount of Rs. 1,600/ was recovered from accused Yashpal @ Sunny. However, the purse and driving license of the complainant and the katta used in the incident could not be recovered.
2. On completion of investigation, chargesheet was filed against both the accused Yashpal @ Sunny and Sanjay @ Deepu for the offence punishable under Section 394/397/201/411/34 IPC.
3. Copies were supplied to the accused persons as required under Section 207 Cr.PC and case was committed to the Sessions Court. After hearing arguments, charge for the offence punishable u/s 397/411/201 IPC was framed against accused Yashpal @ Sunny and a charge for the offence punishable under section 394/34 IPC was framed against both of them to which they pleaded not guilty and therefore, the case was listed for prosecution evidence.
4. At the trial, prosecution examined 10 witnesses in all.
PW1 Jitender was the complainant. He disclosed about the incident in detail. He also identified the accused persons in court.
PW2 SI Netrapal Singh was the incharge of the PCR van which reached the spot and taken the complainant to the hospital.
PW3 SI Anoop Kumar proved the certificate under section 65 of the Evidence Act in respect of Form No. 100 of the PCR.
SC No. 398/16 FIR No. 922/15 State Vs. Yashpal @ Sunny & anr. PS Nand Nagri Page 2 of 10PW4 ASI Ravinder was the first IO who reached the spot and had later recorded the statement of the complainant and got the FIR registered.
PW5 Retd. ASI Rajbir Singh was the Duty Officer who registered the FIR of the present case.
PW6 Salman Malik was the employer of the complainant and he deposed the said fact as also the fact that on 11.09.2015, he had paid Rs. 2,000/ to the complainant in the denomination of Rs. 100/ currency notes, after he came to him on delivering the goods.
PW7 Ct. Ravinder was the DD Writer who proved DD No. 93 B regarding the incident.
PW8 HC Sunil and PW 9 Ct. Sonu remained associated in the investigation of the case with IO and both the accused were arrested in their presence on the identification of the complainant. The recovery of cash from accused Yashpal @ Sunny was also affected in their presence. They also proved the arrest and recovery documents.
PW10 SI Somil Sharma was the IO of the case and he deposed about the investigation of the case as conducted by him, arrest of the two accused and recovery affected from accused Yashpal @ Sunny. He also proved the relevant document prepared by him during investigation.
5. Statement of both the accused were recorded under Section 313 Cr. PC and entire incriminating evidence was put and read over to them which they denied and pleaded innocence. The accused chose not lead any evidence in their defence.
6. I have heard Shri Mukul Kumar - Ld. Addl. PP for the State, Shri R.P. Singh Ld. Counsel for both the accused and have carefully SC No. 398/16 FIR No. 922/15 State Vs. Yashpal @ Sunny & anr. PS Nand Nagri Page 3 of 10 gone through the records of the case.
7. It was submitted by Ld. Addl. PP for the State that the complainant/PW1 duly corroborated his complaint in his deposition and deposed all the facts as stated therein . It was also submitted that PW1 further deposed about the arrest of the two accused, identified them in Court and also deposed about the recovery of Rs.1600/ from accused Yashpal @ Sunny. It was further submitted that the testimony of PW1 has been duly corroborated by PW8, PW9 and PW10 and thus, it has been proved that the two accused robbed the complainant at the point of a katta and as such prayed for their conviction .
8. On the other hand, Ld. Counsel for the accused while countering the arguments of the State submitted that there are major contradictions in the testimonies of the material witnesses and that neither the purse of the complainant nor any katta could be recovered from the accused and hence, prayed for their acquittal.
9. It is clear from the aforesaid that the complainant/PW1 of this case was the main witness of the prosecution. In his deposition before the Court, he deposed all the facts as stated herein above and made categoric allegation that while he was passing through the District Park Nand Nagri, both the accused stopped him and asked for his belongings. He also alleged that accused Sunny put a katta on his head while accused accused Debu took out the purse from his back pocket of the pant which was containing cash Rs.2000/ and his driving licence. He also alleged that on his resistance, accused Sunny hit him on his head with the butt of the katta. He further deposed that on the evening of the next day, he joined the investigation with the IO and got accused Sunny arrested from SC No. 398/16 FIR No. 922/15 State Vs. Yashpal @ Sunny & anr. PS Nand Nagri Page 4 of 10 outside his house from which cash Rs.1600/ were recovered in the form of Rs.100/ denomination notes. He proved the arrest documents and recovery memo of the said notes. He also deposed about the arrest of other accused Debu from the public toilets near District Park Nand Nagri and also proved his arrest documents. He identified his blood stained clothes in the Court which were seized by the IO.
10. In the crossexamination, he admitted that both the accused persons were known to him. He deposed so in his examination in chief as well and also stated this fact in his complaint Ex.PW1/A. It is difficult to perceive that a person well known to the complainant would rob him at gun point, without concealing his identity, only to be named and caught in near future. Though it is case of the prosecution that both the accused have criminal antecedents and accused Yashpal @ Sunny is also a BC of the area, still, even such a person or criminal would not take a chance to commit crime in such a manner so that he can be immediately identified.
11. In the crossexamination, it was deposed by PW1 that at the time of incident, several public persons were present inside the park but he did not tell anyone about the incident. He also deposed that 1020 persons assembled when the PCR came but none of them was cited as a witness.
12. In this regard, the observations of the Hon'ble Apex Court are apt, made in Lakshman Prasad vs State of Bihar AIR 1981 SC 1388, where in almost similar circumstances, the Hon'ble Apex Court observed as under: "The only question that falls for consideration is whether or not the appellant participated in the crime. PWs 1,2 and 4 have supported the prosecution case that SC No. 398/16 FIR No. 922/15 State Vs. Yashpal @ Sunny & anr. PS Nand Nagri Page 5 of 10 the appellant clearly participated in the dacoity and was, in fact, the leader of the dacoits. After going through their evidence, we do find that there is some amount of consistency in their evidence but mere congruity or consistency are not the sole test of truth. Sometimes even falsehood is given an adroit appearance of truth, so that truth disappears and falsehood comes on the surface. This appears to be one of the cases. There are many inherent improbabilities in the prosecution case so far as the participation of appellant is concerned. In the first place, admittedly the appellant was a respectable man in the sense that he was possessed of sufficient means and was a wellknown homeopath doctor and also the neighbour of the complainant. In this view of the matter, it is difficult to believe that he would commit dacoity in the house of his own neighbour and that too in the early hours of the evening, so that he may be caught any moment and take the risk of a conviction under Section 395 Indian Penal Code. Secondly, the evidence of the complainant PW4 clearly shows that the dacoits had no doubt concealed their identity but they did it in such a way that their faces were visible. Indeed, if the appellant had participated in the dacoity and took the precaution of concealing his identity, then he would have seen to it that his face was fully covered so that identification by the complainant or the witnesses would become impossible. If he was a daredevil, then he would not have concealed his identity at all. Thirdly, FIR having been lodged the same evening the police visited the house of the appellant next morning and found him there. If the appellant had really participated in the dacoity, he would have at least made himself scarce. The house of the accused was also searched and nothing incriminating was at all found. Finally, there was the important circumstance that in view of a dispute between complainant Baijnath Prasad and the appellant, there was a clear possibility of the appellant having been falsely implicated due to enmity. The complainant himself admits that there is a boundary wall around the house of the appellant and there is a road which runs to the east of his house and the mill of the complainant is situated to the west of the house. There is evidence of DW2 that there has been some SC No. 398/16 FIR No. 922/15 State Vs. Yashpal @ Sunny & anr. PS Nand Nagri Page 6 of 10 dispute between Baijnath Prasad and accused Lakshman Prasad two or three years before the occurrence of dacoity in respect of a passage near the house of accused Lakshman Prasad through which he used to go to his mill.
It was further observed that :
"Another important circumstance which seems to have been overlooked by the courts below is that PW4 has clearly admitted in his evidence at page 44 of the paper book that immediately after the occurrence, a number of people near the mosque assembled, of whom he recognized Suba Raut and Moti Raut, but they never came to his help. The witness also says that when he came from the west, he saw 40 to 50 persons at a little distance, including Ganesh Raut, Achhelal, Mathura Ram and Rameshwar. Obviously, if an occurrence of dacoity had taken place in the early hours of the evening, the near neighbours must have assembled and yet none of these neighbour have been examined to support the complainant's version that the appellant has participated in the occurrence. It seems to us that the reason why these persons did not choose to support the complainant was that perhaps the appellant had been falsely implicated and hence, the persons who had assembled may not have relished the idea of supporting the complainant if he had gone to the extent of falsely implicating the appellant in the dacoity. These intrinsic circumstances speak volumes against the prosecution case and raise considerable amount of suspicion in our minds regarding the complicity of the appellant in the dacoity. It is well settled that while witnesses may lie, circumstances do no.
Similar observations were made by the Hon'ble Allahabad High Court that known persons will not commit dacoity without concealing their identity, in Abrar Ahmad & anr. Vs. State of UP (2012 ALJ 584); Satyendra Vs. State of UP (Cri. Appeal No. 5509 of 2007) which were relied upon in Chandra Pal Vs. State of UP (Cri. Appeal No. 299 of 1982) decided on 25.7.2013.SC No. 398/16 FIR No. 922/15 State Vs. Yashpal @ Sunny & anr. PS Nand Nagri Page 7 of 10
13. It is also noteworthy that the first call regarding the incident was recorded vide DD No. 93B at 9.17 pm wherein it is recorded that information was received through intercom that a quarrel had taken place near DESU Park Nand Nagri. There was no mention of any robbery therein. Same fact is mentioned in the PCR Form Ex.PW10/A. Thus, initially, the complainant did not make any call regarding robbery to the police.
14. In view thereof, the allegations that the accused robbed PW1 at gun point are not trustworthy. In this context, the defence taken by the accused appears to be appropriate wherein they claimed that they alongwith PW1 were gambling in the park and a quarrel took place between them in which the complainant sustained injury.
15. The next allegation against the accused is the recovery of Rs.1600/ cash from accused Yashpal @ Sunny. The said recovery was in the form of Rs.100/ denomination notes. The serial number of the said notes were noted by the IO in the seizure memo Ex.PW1/C. PW1 had identified the said notes in his examinationinchief. However, it is to be noted that neither in his complaint nor in his examinationinchief, he ever deposed that he was having cash Rs.2000/ in the form of Rs.100/ denomination note nor he had mentioned their serial number therein . It was only after the recovery was affected that he simply identified the said notes and claimed them that they were the same notes which were robbed by the accused.
16. PW6 who was the employee of the complainant, deposed that he had given Rs.2000/ to the complainant and the notes were in denomination of Rs.100/ but it is again noteworthy that his statement SC No. 398/16 FIR No. 922/15 State Vs. Yashpal @ Sunny & anr. PS Nand Nagri Page 8 of 10 U/S 161 Cr. PC was recorded on 17.9.2015, i.e. after the recovery had already been affected. Hence, that part of his testimony is totally unreliable. Further more, PW6 failed to identify the notes before the Court and deposed that he cannot identify the notes even if shown to him.
17. Though PW1 identified the currency notes allegedly recovered from accused Yashpal @ Sunny before the Court claiming them to be the same as robbed from him but in the crossexamination he not only denied to identify the said notes deposing that he cannot identify them if shown to him but when the said notes were produced before him, he failed to identify them. In his further crossexamination, he even deposed that the said notes were not recovered in his presence nor he was present at the time of said recovery from accused Yashpal @ Sunny. He also deposed that he had not seen the notes which were so recovered from the said accused, which is contrary to the prosecution case and the deposition of PW8, PW9 and PW10. Hence, the recovery of the said notes from accused Yashpal @ Sunny is also untrustworthy and the identity of the notes could not be established as the same which were allegedly robbed from the complainant or allegedly recovered from the said accused.
18. The other allegation against accused Yashpal @ Sunny is that he inflicted a blow on the head of the complainant with the butt of the katta while committing the robbery. It is a matter of record that no katta was ever recovered from the said accused or at his pointing out. The complainant/PW1 in his complaint Ex.PW1/A and in his deposition before the Court, alleged that he was given a blow with the butt of the katta by accused Yashpal @ Sunny. However, PW8, PW9 and PW10, all SC No. 398/16 FIR No. 922/15 State Vs. Yashpal @ Sunny & anr. PS Nand Nagri Page 9 of 10 deposed that accused Yashpal @ Sunny had disclosed that he had given a blow on the head of the complainant with a stone. Even that stone could not be recovered. PW10/IO in his crossexamination admitted that the complainant had stated in his complaint that he was assaulted with the handle of the katta but had explained that during interrogation, accused Yashpal @ Sunny disclosed that he used a stone and not a katta to assault the complainant. Thus, there is again a contradiction in the version of complainant and the investigation conducted by the IO regarding the weapon with which injury was inflicted upon the complainant. In case the IO is to be believed, no katta was used in the incident. It again makes the defence of the accused more probable. If that is so, then there is no question of the accused having concealed or made the katta disappear for which he has been charged. It is a matter of record that no recovery of any nature was ever affected from the other accused Sanjay @ Deepu @ Debu.
19. In light of the above discussion, there is no hesitation to hold that the prosecution has failed to prove its case against either of the accused. Hence, both the accused namely Yashpal @ Sunny and Sanjay @ Deepu @ Debu are hereby acquitted of the offence punishable under Section 394/34 IPC. Accused Yashpal @ Sunny is also acquitted for the offence punishable under Section 397/411/201 IPC. They are set at liberty. Their personal bond and surety bonds are discharged.
File be consigned to Record Room. SANJAY Digitally signed by SANJAY SHARMA Location: Delhi SHARMA Date: 2020.01.10 ANNOUNCED IN OPEN COURT 16:11:23 +0530 ON 10th day of January 2020 (SANJAY SHARMAI) District Judge (Commercial Court) East District Karkardooma Courts, Delhi SC No. 398/16 FIR No. 922/15 State Vs. Yashpal @ Sunny & anr. PS Nand Nagri Page 10 of 10