Delhi District Court
State vs Vishal And Anr on 19 September, 2023
IN THE COURT OF ASJ (FTC)-02, SOUTH DISTRICT, SAKET
COURTS
PRESIDED OVER BY : SH. VISHAL PAHUJA
CNR No. DLST010031142017
STATE VS. VISHAL AND OTHER
FIR NO. 05/2017
PS: SAKET
U/S: 392/397/411/34 IPC
State
Versus
1. Vishal,
s/o Sh. Ramvir @ Munshi Lal,
2. Deepak,
s/o Sh. Vijay @ Vinod,
both r/o C-73, Sewa Sadan Sangam Vihar,
New Delhi. .... Accused Persons
DATE OF INSTITUTION : 03.04.2017
DATE OF RESERVING JUDGMENT : 16.09.2023
DATE OF JUDGMENT/ ORDER : 19.09.2023
FINAL ORDER : Acquitted
JUDGMENT
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. Brief facts of the case are that on 04.01.2017 on receipt of DD no. 6A, SI Pancham Kumar along with Ct. Niranjan reached at the spot i.e. near DC Office, MB Road, Saket where they met the complainant Sh. Munendra Kumar Yadav along with Ct. Pankaj and Ct. Sunil who produced accused persons namely Vishal and Deepak from their custody and stated that accused persons along with other accomplice (fled away) have committed robbery and also attacked upon complainant while committing FIR No. 05/2017 State v. Vishal and others Page 1/14 the robbery. From accused Vishal a laptop bag and a laptop was got recovered and from accused Deepak, a knife was recovered on the spot. Statement of complainant Sh. Munendra Kumar Yadav was recorded vide Ex. PW1/A.
2. As per the statement of complainant Sh. Munendra Kumar Yadav, on 04.01.2017 at about 12.30 AM, while he was returning from his work and reached near MB Road, Ignou Road, T-point, three boys came to him out of which one boy pointed the knife on his back and the other two boys took him to the service road.
One of the assailant took out his purse containing Aadhar Card, RBL debit card and cash amounting to Rs 500/-. They also took the fast track watch and mobile phone make Redmi of the complainant. As per the complainant, the assailant having knife in his hand threatened him not to shout else he will stab him. The third assailant snatched his laptop bag containing Lenovo laptop. Thereafter, all the three assailants ran away towards the other side of the road. Complainant chased the assailants while shouting for help and was able to caught hold of two of the said assailants with the help of public persons & the third one escaped. In the meantime, police officials came at the spot and caught hold both the accused persons namely Vishal and Deepak. On the basis of the complaint, present FIR was registered.
3. During the investigation, both the accused persons namely Vishal and Deepak were arrested and the case property i.e. Lenovo laptop along with bag recovered from the possession of the accused Vishal was seized. The knife, weapon of offence was also recovered from the possession of the accused Deepak and seized by the Investigating Officer. After the conclusion of the FIR No. 05/2017 State v. Vishal and others Page 2/14 investigation carried out in the FIR no. 05/2017, police filed the charge sheet against the accused persons namely Vishal and Deepak for commission of offences U/s 392/397/411/34 Indian Penal Code (hereinafter referred as IPC).
4. Vide Order dated 03.04.2017, Ld. ACMM concerned took cognizance of the offences u/s 392/397/411/34 IPC and accused persons were called upon to face the trial. Accordingly, they were supplied with the charge sheet and other relevant documents in compliance to section 207/208 Code of Criminal Procedure (hereinafter referred as Cr.P.C.). Thereafter, the present matter was received by way of committal to the Court of Sessions on 10.04.2017.
CHARGE
5. Vide order dated 18.07.2017, charge for the offence punishable u/s 392/397/34 IPC was framed by the Ld. Predecessor of this Court against the accused persons namely Vishal and Deepak and and a separate charge for the offence punishable u/s 411 IPC was framed against accused Vishal separately who pleaded not guilty and chose to face trial.
MATERIAL EVIDENCE IN BRIEF:
6. Prosecution examined total 7 (seven) prosecution witnesses (hereinafter referred to as PW) to prove its case.
7. PW1 Sh. Munendra Yadav is the complainant in the FIR No. 05/2017 State v. Vishal and others Page 3/14 present case and is the star witness of the prosecution who deposed in view of his complaint Ex. PW1/A. PW1 further exhibited on record his laptop bag and laptop that were recovered from the possession of accused Vishal. Same was seized vide memo Ex. PW1/B. PW1 further deposed that the knife was also recovered and seized vide memo Ex. PW1/D and its sketch memo is Ex. PW1/C. This witness also exhibited on record arrest memo of accused Vishal as Ex. PW1/E. PW1 further deposed that SI Pancham prepared the site plan at his instance. Same is Ex. PW1/F. PW1 identified the accused persons before the court during trial. PW1 also identified the case property i.e. his laptop which was released on superdari from the court. Same is Ex. P1. PW1 also identified the knife as Ex. P2. PW1 was cross examined on behalf of accused persons.
8. PW2 ASI Bidichand was the duty officer who proved and exhibited on record DD no. 6A as Ex. PW2/A, computerized FIR as Ex.PW2/B, endorsement on rukka as Ex.PW2/C and certificate u/s 65B of Indian Evidence Act as Ex. PW2/D. PW2 was cross-examined on behalf of accused Vishal.
9. PW3 SI Pankaj deposed that on 04.01.2017 he along with Ct. Sunil was on night patrolling duty in the area of Saket. During patrolling, they reached at MB Road in front of DC office, where they saw 2-3 public persons were beating two boys. PW3 further deposed that he along with Ct. Sunil over powered both the boys and upon inquiry came to know that both the boys along with one more associate had robbed laptop bag from the possession of complainant by showing knife. PW3 further deposed that they informed about the said incident to Duty FIR No. 05/2017 State v. Vishal and others Page 4/14 Officer PS Saket and accordingly IO SI Pancham along with constable reached at the spot and PW3 handed over the custody of accused persons to IO along with a laptop bag containing Laptop Make Lenovo of black colour. PW3 identified the accused persons before the court during trial. This witness relied upon the documents exhibited on record by PW1. PW3 also identified the case property i.e. laptop through photographs Mark A1 to A4. The laptop is Ex. P1 and knife is Ex. P2. PW3 was cross examined on behalf of accused persons.
10. PW4 Ct. Sunil deposed on the same lines as that of PW3 SI Pankaj. PW4 also relied upon the documents exhibited on record by PW1. PW4 identified the accused persons before the court during trial. In addition to that, PW4 also exhibited on record disclosure statement of accused Vishal as Ex. PW4/A. PW4 identified the case property i.e. laptop through photographs Mark A1 to A4. The laptop is Ex. P1 and knife as Ex. P2. PW4 was cross examined on behalf of accused persons.
11. PW5 Ct. Amit Kumar was the duty writer who proved and exhibited on record DD no. 60B as Ex. PW5/A. PW5 was cross examined on behalf of accused Deepak.
12. PW6 SI Rajdeep Singh deposed that on 04.01.2017 on the directions of SHO, he obtained one day PC remand of accused Vishal and thereafter handed over the accused to IO SI Pancham Kumar. PW6 was cross examined on behalf of accused persons.
FIR No. 05/2017 State v. Vishal and others Page 5/1413. PW7 SI Pancham Kumar was the Investigating Officer who deposed qua the manner and his involvement in the investigation. PW7 deposed that on 04.01.2017 on receipt of DD no. 6A already Ex. PW2/A, he along with Ct. Niranjan reached at the spot near DC office, MB Road, Saket, where complainant along with Ct. Pankaj and Ct. Sunil met him, having custody of two boys. PW7 relied upon the documents exhibited by PW1, PW4 and PW5 in his testimony. PW7 prepared the tehreer for registration of FIR as Ex. PW7/1. PW7 personally searched the accused Vishal vide personal search memo Ex. PW7/2. Deepak was found to be major and he was arrested vide arrest memo Ex. PW7/7. Accused Deepak was personally searched vide memo Ex. PW7/8, his disclosure statement is Ex. PW7/9. During investigation, PW7 has also collected the invoice of the robbed mobile phone and fastrack watch. Same is Ex.PW7/10 (Colly). PW7 also collected invoice of recovered laptop and the same is Ex. PW7/11, the letter for providing CDR of the robbed mobile phone is Ex. PW7/12. PW7 further exhibited on record the order of Juvenile Justice Board qua declaring accused Deepak major as Ex. PW7/13. On completion of investigation, PW7 submitted the charge sheet before the court. PW7 identified the accused persons before the court during trial and also identified the laptop and laptop bag recovered through photographs that are now Ex. P-1 (Colly). PW7 was cross examined on behalf of accused persons.
14. During trial, accused persons admitted the genuineness of documents i.e. MLC of accused Deepak as Ex. A-1 and that of accused Vishal as Ex. A-2 vide statement u/s 294 Cr.P.C.
FIR No. 05/2017 State v. Vishal and others Page 6/1415. No other PW was left to be examined, hence PE was closed.
STATEMENT OF ACCUSED PERSONS U/S 313 Cr.P.C.:
16. Statement of accused persons recorded separately U/s 313 Cr.P.C in which all the incriminating circumstances appearing in evidence were put to them. The accused persons controverted and denied the allegations levelled against them. It is stated by accused persons that they have been falsely implicated in the present case. It is submitted by accused persons that they had also received injury. The complainant caused the injury to them at that time as he was under the influence of liquor and collided with accused Deepak. The complainant picked up quarrel with accused Vishal and gave beatings. Thereafter, the complainant has falsely implicated accused persons in the present case. Accused persons opted not to lead any defence evidence.
ARGUMENTS:
17. Ld. Additional PP for State has argued that prosecution witnesses have supported the case of prosecution and their testimony has remained unrebutted. It is further stated that the complainant on whose complaint the FIR was registered has categorically identified the accused persons as perpetrator of the crime and the recovery of the case property effected from their possession also have been duly proved. That on a combined reading of testimony of prosecution witnesses, offences U/s 392/397/411/34 IPC are proved against the accused persons beyond reasonable doubt.
FIR No. 05/2017 State v. Vishal and others Page 7/1418. On the other hand, Ld. Counsel for accused persons have stated that there is no legally sustainable evidence against the accused persons. It is further argued that there are material discrepancies and contradictions in the testimony of star witness and the police witnesses which renders their testimony unreliable. It is further argued that the recovery shown to have been effected from the accused persons is planted and has not been proved beyond reasonable doubt and therefore the entire case of the prosecution is under the cloud of doubt. Hence, the accused persons are entitled to be acquitted in this case.
FINDINGS:
19. Arguments advanced by Ld. Additional PP for State and Ld. Defence Counsel for the accused persons have been heard. Evidences and documents on record perused carefully.
20. I have bestowed my thoughtful consideration to the rival submissions made before me. Accused persons are indicted for the offences u/s 392/397/34 IPC and accused Vishal is also indicted for offence u/s 411 IPC. Section 392 IPC provides punishment for committing robbery, Section 397 IPC provides punishment for committing robbery or dacoity, where the offender uses any deadly weapon, or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person. Section 411 IPC provides punishment for dishonestly receiving and retaining any stolen property knowingly or having reason to believe the same to be stolen property.
FIR No. 05/2017 State v. Vishal and others Page 8/1421. After appreciating the evidence and going through the testimony of the prosecution witnesses this Court finds the accused persons not guilty for any offence charged herein and they deserve acquittal for the following reasons:-
22. PW1 Munender Yadav was the complainant and the star witness of the prosecution on whose testimony the case of prosecution rests. Bare perusal of the deposition of PW1 reveals that there are material contradictions and inconsistencies in his testimony that goes to the root of the case and shake its credence. There are also material contradictions in the testimony of police witnesses vis-a-vis the testimony of the complainant which creates doubt in the recovery of case property as well as the story of the prosecution as a whole.
23. Firstly, as per the case of prosecution, the incident happened at 12:30 Am on the intervening night of 03.01.2017/04.01.2017. In his examination in chief PW-1 stated that he left his office at 11 PM on 03.01.2017 and he hardly travelled for about 100 meters from his office when the incident took place, meaning thereby the incident happened within 10-15 minutes of the complainant leaving his office that may be between 11 pm to 11:30 pm which is contrary to the time of incident as claimed by the prosecution i.e. 12:30 am. In the statement Ex.PW1/A there is interpolation in the date and time of the incident which does not match with the claim of the complainant as stated in his testimony recorded before the Court. Moreover, PW1 in his cross-examination stated the timing of his office as 10 Am to 6 Pm which does not explain & correlates with the timings of the incident.
FIR No. 05/2017 State v. Vishal and others Page 9/1424. Secondly, PW1 in his examination-in-chief stated that his laptop bag and laptop was recovered from one of the accused but this witness did not name the accused from whom it was recovered. Further, during his cross-examination this witness stated that when the police person came, the bag was lying on the road and PW1 himself picked up and handed over the same to the police. The aforesaid statement of the PW1 is self-contradictory and also goes to the root case of prosecution. PW1 in his examination-in-chief stated that one knife was recovered from another accused but he again did not name the said accused in his examination in chief. Further, PW1 in his examination in chief stated that one of the assailants was also having a gun in his hand but this fact is not mentioned in his previous statement Ex.PW1/A on the basis of which the present FIR was registered. The complainant tried to make improvements in his testimony recorded before the Court which coupled with material inconsistencies dent the credibility of his deposition. Further, PW1 in his examination-in-chief stated that the police officials took him and the accused persons to the police station from the spot but during cross-examination PW1 stated to have walked down to the police station with the accused.
25. The aforesaid discrepancies and contradictions appearing in the testimony of PW1 renders his deposition highly unreliable and it does not inspire the confidence of the Court.
26. Now coming to the testimony of police witnesses. PW3 Ct. Pankaj in his examination-in-chief was silent on the fact that from whose possession the laptop was recovered whereas in his FIR No. 05/2017 State v. Vishal and others Page 10/14 cross-examination he stated that he recovered the laptop bag from the possession of accused Vishal which is contradictory to the version of PW1. In respect to the date of happening of incident, the testimony of PW3 Ct. Pankaj and PW4 Ct. Sunil is completely contradictory to the case of prosecution. As per both the aforesaid prosecution witnesses they were on patrolling duty on the intervening night of 04.01.2017 and 05.01.2017 when the incident took place whereas the incident allegedly took place on the intervening night of 03.01.2017 and 04.01.2017. There is another material inconsistency between the testimony of PW3 and PW4 apart from the aforesaid discrepancy which render their testimony doubtful, that is, as per PW3, he along with PW4 and the complainant took the accused persons to the police station from the spot whereas PW4 stated to have taken the accused persons for medical examination directly from the spot and thereafter, he reached at the police station. The statement of PW4 is also contradictory to the version of PW1 as per whom the accused persons were taken by him directly to the PS. Further, PW3 Ct. Pankaj in his examination-in-chief stated that IO took cursory search of accused Deepak and recovered the knife from his possession, however, during his cross-examination PW3 and PW4 stated that IO had not recovered the knife from the possession of accused Deepak rather PW3 himself made the search of the accused persons and found the knife in the pocket of accused Deepak.
27. As per the testimony of PW7, IO/SI Pancham Kumar he reached at the spot on receiving the DD entry no. 6A and conducted the proceedings on the spot such as recovery of case property and preparation of seizure memo in that regard where FIR No. 05/2017 State v. Vishal and others Page 11/14 complainant and the accused persons were already present whereas on the contrary the complainant PW1 has stated that he met the IO/SI Pancham after reaching the police station and has denied the IO coming on the spot and conducting of the proceedings therein. It is also important to note that the statement of complainant was admittedly recorded in the police station and on the basis of the same FIR was registered but the prosecution has failed to explain as to how the details of the FIR are written on the seizure memos which as per the IO were prepared on the spot before registration of the FIR.
28. Admittedly, no public witness has been made to join the recovery proceedings by the IO. As per PW1, he apprehended the accused persons with the help of public persons but no such public person has come forward to record his deposition before the police or before the Court and no sincere efforts were made by the police to make any public person join the proceedings. In his cross-examination PW1 could not tell the name and address of the public person who helped in apprehending the accused persons. PW3 also during his cross-examination admitted the presence of 3-4 public persons at the spot when they reached there. It is highly improbable to believe that if the accused persons were apprehended and recovery was effected in the presence of public persons then, the IO ought to have recorded statement of such public persons which is missing in this case. In absence of any independent public witness, the recovery shown to have been effected from the accused persons becomes doubtful. Non joining of public witnesses also causes a dent in credibility of prosecution version. In this regard reliance is being placed on the case law reported as "Anoop Joshi Vs. State"
FIR No. 05/2017 State v. Vishal and others Page 12/141992(2) C.C. Cases 314(HC) in which High Court of Delhi had observed as under:
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigors of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
29. Neither the testimony of star witness PW1 inspires the confidence of the Court nor the story of prosecution is coherent and consistent in the testimony of police witnesses. The ring of truth is not formed by the deposition of the prosecution witnesses and the fact of recovery of case property is also not proved beyond reasonable doubt.
30. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt if any FIR No. 05/2017 State v. Vishal and others Page 13/14 in the prosecution story and such reasonable doubt entitles the accused to acquittal.
31. In view of the material inconsistencies as discussed above, this Court is of the view that prosecution has miserably failed to prove its case beyond tinge of doubt. The tainted evidence coming on record entitles the accused persons to the benefit of doubt. Therefore, the accused persons namely Vishal and Deepak are hereby acquitted of the charges levelled against them in the present case. Digitally signed by VISHAL VISHAL PAHUJA PAHUJA Date:
2023.09.19 17:13:11 +0530 ANNOUNCED IN THE OPEN (VISHAL PAHUJA) COURT ON 19.09.2023 ASJ (FTC) -02 SOUTH DISTRICT SAKET COURTS Containing 14 pages all signed by the presiding officer.Digitally signed
VISHAL by VISHAL PAHUJA PAHUJA Date: 2023.09.19 17:13:43 +0530 (VISHAL PAHUJA) ASJ (FTC) -02 SOUTH DISTRICT SAKET COURTS FIR No. 05/2017 State v. Vishal and others Page 14/14