Delhi District Court
State vs Manoj Kumar & Sonu on 15 December, 2021
IN THE COURT OF MS. NEHA PANDEY, MM-06 (N)
ROHINI COURTS: DELHI
State Vs Manoj Kumar & Sonu
FIR No. : 240/2009
U/S : 392/394/34 IPC
P.S. : Adarsh Nagar
JUDGMENT
a) CIS No. of the case : 5289223/2016
b) Date of institution of the case : 08.12.2009
c) Date of commission of offence : 12.10.2009
d) Name of the complainant : Laxmi Narayan Saini
S/o Late Bhullan Saini
e) Name & address of the : 1. Manoj Kumar
S/o Sh. Naresh Chand
Accused R/o House no.466, A/3,
Village- Azadpur, Delhi.
2. Sonu
S/o Sh. Sarabjeet Singh
R/o House no.459/8,
Dhanpat Ka Kalra,
Village, Azadpur, Delhi.
f) Offence charged with : 392/394/34 IPC
g) Plea of the accused : Pleaded not guilty
h) Arguments heard on : 27.11.2021
FIR No. 240/09 PS Adarsh Nagar State vs. Manoj and Anr. page 1 of 13
i) Final order : Acquittal
j) Date of Judgment : 15.12.2021
BRIEF STATEMENT OF REASONS FOR DECISION
1. Briefly stated, accused Manoj Kumar and Sonu have been sent to face trial with the allegations that on 12.10.2009 at around 8:00 pm, near Government Secondary School, Azadpur, Delhi within the jurisdiction of PS Adarsh Nagar, both accused persons in furtherance of common intention restrained the way of complainant above and voluntary caused simple hurt to him in committing a robbery of Rs.1000/- and one gold chain. Investigation was carried out.
2. Upon completion of investigation charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO and the accused persons were consequently summoned. A charge u/s 392/394/34 IPC was framed against both accused on 18.08.2010 to which they pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, prosecution examined total of 08 witnesses and exhibited documents.
4. The testimony of the prosecution witness in brief is discussed here as follows:
5. PW-1/ the complainant Laxmi Narayan Saini stated on Oath that on 12.10.2009 while he was returning from work at around 8:00 to 8:15 pm upon reaching government school building two FIR No. 240/09 PS Adarsh Nagar State vs. Manoj and Anr. page 2 of 13 persons came from front, one person slapped him and the other gave fist blow to him due to which he fell on the ground. He further stated that one person removed Rs.1000/- from his shirt pocket and the other forcibly took the gold chain which he was wearing. He further stated that upon raising alarm the public apprehended one person on the spot by name Manoj and the witness correctly identified the said accused in the court. He further stated that his statement PW-1/A bearing his signature at point A was recorded and also the arrest memo of accused Manoj PW1/B and personal search memo Ex.PW1/C of accused Manoj was prepared in his presence. In the cross-examination by defence the said witness admitted to have not given any proof of possession of gold chain to the IO nor the IO sought the same from him.
6. PW 2/ASI Bal Raj Singh is a formal witness who stated to have registered the present FIR upon receiving rukka from HC Ram Karan was sent by SI Sewa Singh. The said rukka is Ex.PW2/A and the FIR is Ex.PW2/B bearing his signature at point A. The said witness was not cross examined by the defence despite opportunity.
7. PW 3 Ct Kishan Yadav is also a formal witness who stated to have received an information from PCR via intercom at around 8:25 pm that regarding two snatchers being apprehended at Azadpur village, the said DD entry was reduced in writing by him which is Ex.PW3/A and was handed over to HC Ram Kiran ASI Sewa Ram. The said witness was not cross examined by the defence despite opportunity.
FIR No. 240/09 PS Adarsh Nagar State vs. Manoj and Anr. page 3 of 13
8. PW-4 ASI Ram Karan who accompanied the IO for the proceedings conducted by him in the present FIR. It is stated that upon receiving the information of robber vide DD No.61B he alongwith IO reached the spot and the IO recorded the statement of the complainant and he took the complainant to BJRM hospital for treatment and return to the hospital after the same to the spot alongwith the complainant. He further stated to have handed over the rukka for registration of FIR and also stated arrest memo Ex.PW1.B and disclosure statement of accused Manoj is Ex.PW4/A and his personal search memo Ex.PW1/C in his presence by the IO. In his cross-examination the said witness admitted that no recovery was effected from the accused in his presence. He also admitted to the presence of public persons at crime spot. He admitted that IO did not accompanied him to the hospital.
9. PW 5 HC Pyare Lal is also a formal witness who is stated to have accompanied SI Mohd. Swaley on 21.11.2009 to Rohini Court where the other co-accused Sonu surrendered before the court and his arrest memo Ex.PW5/A was prepared in his presence. He further stated that SI Mohd Swaley took one day PC remand of accused Sonu from the court but nothing was recovered from him. The said witness was not cross examined by the defence.
10. PW 6 SI Mohd. Swaley who arrested the Co-accused Sonu on behalf of IO upon his surrender before the court. He deposed on the same lines as PW-5 above and stated to have handed over all the document concerning the accused Sonu to the IO Sewa Singh. The FIR No. 240/09 PS Adarsh Nagar State vs. Manoj and Anr. page 4 of 13 said witness was not cross examined by the defence witness.
11. PW-7 Dr.Deepak stated on oath that PW7/A i.e MLC of the complainant was prepared by Dr. Danish and Dr. Vikram and he identified the signature of the two doctors. In the cross-examination by defence the said the witness admitted that Ex.PW7/A was not prepared in his presence.
12. PW-8 IO/SI Sewa Singh in his examination in chief stated to have conducted the initial investigation in the present matter upon receiving DD No.61-A alongwith HC Ram Karan and he deposed on the same as PW-4 Ram Karan. Further he stated that the co-accused Sonu was arrested by ASI Mohd Swaley on his behalf as he was not there on the station on date of surrender of the co- accused. In his cross-examination by the defence counsel he stated to have not remember exact time when he left the spot and came back from BJRM hospital. He stated to have not remember the kind of cloths which were worn by accused Manoj on the date of incident. He admitted to have not taken any PC remand of accused Manoj.
13. Prosecution evidence was thereafter closed.
14. Statement of both of accused was recorded u/s 313 Cr.PC on 05.04.2021, wherein all the incriminating evidence was put to the accused, to which they stated that they have been falsely implicated in this case and stated that some unknown persons threw empty water bottle towards the complainant which hit the complainant and the complainant caught hold of them and also gave FIR No. 240/09 PS Adarsh Nagar State vs. Manoj and Anr. page 5 of 13 beatings to them and file a false complaint against them. Further, the accused did not wish to lead defence evidence.
15. Final Arguments heard on 27.11.2021. Case file perused.
16. Short point for determination before the court is as under -
"Whether on 12.10.2009 at about 08:00 PM at near Governmment Secondary School Azadpur, Delhi within the jurisdiction of PS Adarsh Nagar, accused persons namely Manoj s/o Naresh Chand and Sonu S/o Sarabjeet committed robbery of Rs. 1000/- and one gold chain and voluntarily caused hurt to the complainant or not?"
17. It is argued by Ld. APP for the state that from the ocular and documentary evidence on record, prosecution has proved beyond reasonable doubt that the accused persons committed robbery as they have been correctly identified by the complainant before court and also the accused Manoj was apprehended on the spot by public and thus he submitted that accused persons be convicted of the offence charged.
18. Per contra, it is argued by the Ld. Counsel for the accused that both the accused persons are completely innocent and no recovery of case property has been effected in the present matter. It is further submitted by Ld. Counsel that non joinder of public witness despite availability cast shadow on prosecution story. At the end, submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt and therefore, the accused persons are liable to be acquitted of the alleged offence.
FIR No. 240/09 PS Adarsh Nagar State vs. Manoj and Anr. page 6 of 13
19. I have heard the rival submissions and have also carefully gone through the entire material available on record and evidence led on behalf of the prosecution. My findings on the point for determination and brief reasons for the same are now being discussed in following paragraphs.
20. In present case, prosecution was first duty bound to prove its case beyond reasonable doubt against both the accused persons.
21. In the present case, the testimony of the complainant Laxmi Narayan Saini in absence any other independent public witness does not inspire the confidence of this court. The tehrir/statement ExPW1/A of the complainant bearing his signature at point A clearly mentions that both the accused persons belongs to the same village as that of the complainant. Thus, the mere identification of accused in court by complainant does not go against the accused persons. Further it was submitted by the PW1 in ExPW1/A as well as in his testimony dated 20.09.2013 that out of the two accused persons the accused Manoj was apprehended by the public on the spot. The prosecution has failed to examine any public witness who must have apprehended the accused Manoj on the date of incident. Also the IO SI Seva Singh PW8 has in his testimony nowhere give any reason of absence of any public witness who apprehended the accused Manoj. Also PW3 Ct. Kishan yadav who reduced the DD entry Ex.PW3/A mentions about two snatchers being apprehended by the public but as per the complainant and the other prosecution witness only Manoj was apprehended by public. The other accused FIR No. 240/09 PS Adarsh Nagar State vs. Manoj and Anr. page 7 of 13 Sonu was arrested in the present matter upon his surrender on 21.11.2009. Thus, this ambiguity has not been explained by prosecution in present trial.
Also there is no recovery of any stolen articles from either of the accused persons. The complainant PW1 stated his gold chain of around 8 gram was robbed by the two accused persons but the prosecution has failed to bring any document on record regarding the proof of possession of gold chain weighted 8 gram with the complainant. No recovery from either of the accused persons also creates doubt in the story of prosecution regarding robbery of gold chain by accused persons.
22. Further, the PW1 who is the only independent witness in the present matter who stated that he was being hit by both the accused persons and in the same simple injury was caused to him in that transaction the MLC Ex.PW7/A of the complainant was prepared in this regard but the said MLC remains not proved as Dr. Vikram who prepared the present MLC was never examined by the prosecution instead of him PW7 Dr. Deepak was examined who identified the signature of Dr. Vikram and admitted in cross- examination that Ex.PW7/A was not prepared by him. MLC being not proved creates again dent in the story of the prosecution regarding injury being caused to complainant.
23. Further the alleged offence took place at around 8 pm near Government Secondary School and the prosecution has failed to bring on record any CCTV footage if available pertaining to the FIR No. 240/09 PS Adarsh Nagar State vs. Manoj and Anr. page 8 of 13 alleged incident.
24. Further the site plan Ex.PW8/B which was prepared by the IO SI Seva Singh in presence of PW4 ASI Ram Karan also appears to be not proper as no FIR No. is mentioned on the said site plan. Also there is no signature of any witness or the complainant at whose instance the site plan is said to be prepared by the IO. The site plan Ex.PW8/B also does not mention any time of his preparation. Thus, the document Ex. PW8/B also remains not proved.
25. Incident is stated to have happened at about 08:00 PM and it is evident from the testimony of IO and complainant that it was a public place, but still no public independent person was cited as a witness in this case. Though PW-4 and PW-8 stated in their testimony that some public persons were requested to join, but none of them agreed. But they did not disclose the names of any such witnesses and further, PW-8 failed to depose that any notice was served on these witnesses and he also failed to bring anything on record as to why no such notice could be given, and therefore, merely making bald averments that public persons were requested to join, does not inspire confidence at all looking at the time, place of incident and overall facts and circumstances of the case. Therefore, it is clear that sincere efforts were not made to join independent witnesses despite their availability which causes a serious dent in the story of the prosecution and all these facts makes the alleged recovery very doubtful.
FIR No. 240/09 PS Adarsh Nagar State vs. Manoj and Anr. page 9 of 13
26. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), wherein, Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that 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 evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers 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 rigours 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".
27. Similarly, in Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is observed as under:-
"that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they FIR No. 240/09 PS Adarsh Nagar State vs. Manoj and Anr. page 10 of 13 are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".
28. Also, in State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court held as under:
"It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well- settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions." [Emphasis supplied]
29. Considering the aforesaid observations made by the Higher FIR No. 240/09 PS Adarsh Nagar State vs. Manoj and Anr. page 11 of 13 Courts, the omissions / failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story and substantiates the defence version that there is false implication of the accused in the present case and also in light of the fact that no recovery has been effected in the present matter. Further, considering facts and circumstances of the present case in the light of ratio in State of Punjab v. Balbir Singh, AIR 1994 SC, there was no lack of time and opportunity to associate some independent witnesses with the search and strictly comply with the provisions of Code of Criminal Procedure. Hence, the above- mentioned facts create serious doubt on the case of the prosecution.
30. As per the version of the prosecution, the complainant was robbed up gold chain weighted 8 gram Very surprisingly, no efforts whatsoever have been made by the prosecution to have clue about the possession of the said chain with the complainant at the time of offence. At least some efforts must have been made by the police to interrogate the complainant and conduct requisite investigation to bring on record the proof possession of gold chain to the complainant.
31. Further, Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that the hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty shall be entered vide a separate entry and FIR No. 240/09 PS Adarsh Nagar State vs. Manoj and Anr. page 12 of 13 this entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal. In the present case, all these departure or the arrival entries have not been proved on the record by the prosecution. In absence of such proof, the presence of the police officials at the spot cannot be believed. Reference can be made to on Rattan Lal Vs. State 1987 (2) Crimes 29.
32. From the aforesaid discussion, it is very clear that the manner in which the inquiry, seizure and search etc. has been conducted, it makes the prosecution version highly doubtful. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
33. Therefore, in view of the discussions made herein above and the facts and circumstances of the present case, in my considered opinion, the prosecution has failed to prove the guilt of both the accused beyond reasonable doubt. Hence, accused persons namely Manoj Kumar S/o Naresh Chand and Sonu S/o Sharabjeet Singh stands acquitted of the offences under section 392/394/34 IPC they have been charged with. Ordered accordingly.
Announced in the open court (NEHA PANDEY) on 15.12.2021 MM-06/North/Rohini
FIR No. 240/09 PS Adarsh Nagar State vs. Manoj and Anr. page 13 of 13