Delhi District Court
State vs . Rahul & Anr. on 28 November, 2019
IN THE COURT OF MS. MANU VEDWAN, MM01,WEST DISTRICT,
TIS HAZARI COURT, DELHI
STATE VS. RAHUL & ANR.
FIR No.522/17
PS: PUNJABI BAGH
U/S: 392/411/34 IPC
ID No. : 7866/2017
Date of commission of offence : 26.09.2017
Date of institution of the case : 18.12.2017
Name of the complainant : Sh. Tasbbar Khan s/o Sh. Anwar
Gaffar r/o D740, JJ Colony,
Madipur, Delhi.
Name of accused and address : (i) Rahul s/o Sh. Ramesh Chander
R/o E206, JJ Colony, Madipur, New
Delhi.
(ii) Prashant Vijay @ Rahul s/o Sh.
Kailash Chand r/o A224, JJ Colony,
Madipur, New Delhi.
Offence complained of or proved : U/s 392/411/34 IPC.
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date of judgment : 28.11.2019
JUDGMENT
01 The case of the prosecution, in brief, is that on 26.09.2017, at about 08:20 pm at Madipur Subzi Mandi, Delhi, accused persons namely Rahul and Prashant FIR No.522/17, PS Punjabi Bagh, State Vs. Rahul & Ors. Page No. 1 of 9 Vijay committed robbery of mobile phone made Micromax belonging to the complainant. It is further alleged that the aforesaid mobile phone was recovered from the possession of the accused persons which was retained by both the accused persons dishonestly or having reasons to believe that the same was robbed property. Matter was reported to the police and on the basis of the statement of the complainant, the present FIR came to be registered.
02. After completion of necessary formalities, charge sheet was filed in this Court. Cognizance was taken. The accused persons were summoned. Copies were supplied to the accused persons and vide order dated 13.05.2019, charge for offence u/s 392/411/34 IPC was framed against the accused persons to which they pleaded not guilty and claimed trial.
03. In order to prove its case, prosecution examined two witnesses in the present case which are as follows: PW1, Sh. Tassabar Khan, deposed that on 26092017, he had gone to Madipur Subzi Mandi. At about 8.20 PM, he went to Public Toilet, and, when he was coming out from there, two boys approached him, out of which one of the boys had caught hold of him from behind and pressed his neck from front. PW1 further deposed that the second boy took out his mobile phone Micromax of white colour from the pocket of his wearing shirt. PW1 deposed that they had also beaten him with fists and leg blows and started to run away from there. PW1 had raised an alarm for shouting Chor Chor and one police official coming from front side had apprehended one of the accused with the help of public persons. The public person also beaten the accused. On interrogation, the name of the accused was disclosed as Rahul and he disclosed the name of his associate FIR No.522/17, PS Punjabi Bagh, State Vs. Rahul & Ors. Page No. 2 of 9 as Rahul @ Prashant.
PW1 further deposed that public person called the police at 100 number and after sometime police came at the spot. In the meantime, PW1 had went to Doctor as he had suffered injury in his leg. PW1 was called to the police station by the police on the same day where his statement was recorded by the police which is Ex.PW1/A bearing his thumb impression at point A. PW1 identified his thumb impression on the documents i.e. site plan, seizure memo of mobile phone, arrest memo of Rahul and Prashant @ Rahul and personal search memo of both accused persons which are exhibited as Ex.PW1/B to Ex.PW1/G respectively. PW1 further deposed that after sometime, his mobile phone was recovered and he got the same released on superdari vide superdarinama alongwith affidavit Ex.PW1/H bearing his signature at point A. PW1 did not identify the accused persons as from the spot he went to the doctor and accused persons were not apprehended in his presence.
PW1 was crossexamined by Ld. APP for the state as he was unable to identify the accused persons after taking due permission after taking permission but PW1 miserabely failed to identify the accused person even after pointing out by Ld. APP.
PW2, SI Baljor Singh, deposed that on 26092017, he was posted as ASI at police post Madipur, PS Punjabi Bagh. On that day, he had received the DD No.38 PP dated 2609 2017 Mark A1 in respect of apprehension of one of the accused. Thereafter, PW2 alongwith Constable Umer reached at the spot i.e. at Subzi Mandi Madipur, Delhi where the complainant Tasavvar Khan alongwith Constable Devender met them and handed over the accused to them whose name was disclosed to be Rahul S/o Ramesh Chander. PW2 further deposed that FIR No.522/17, PS Punjabi Bagh, State Vs. Rahul & Ors. Page No. 3 of 9 thereafter, the complainant disclosed about the incident to him and he recorded his statement which is exhibited as Ex.PW2/A bearing his signatures at point B. PW2 prepared the tehrir which is Ex.PW2/B bearing his signature at point A and handed over the same to Constable Umer who went to the police station and got the FIR registered and came back at the spot alongwith the original tehrir and copy of the FIR and handed over the same to him.
PW2 further deposed that he prepared the site plan at the instance of the complainant which is Ex.PW1/B bearing his signatures at point B. Thereafter, PW2 interrogated the accused Rahul and thereafter arrested him vide arrest memo Ex.PW1/D bearing his signatures at point B. Accused Rahul was also personally searched vide personal search memo Ex.PW1/F bearing his signatures at point B. Thereafter, accused Rahul took them to the house of co accused Prashant @ Vijay i.e. at A224, JJ Colony, Madipur, Delhi on the same day where they found accused Prashant @ Vijay. The coaccused Prashant @ Vijay @ Rahul was apprehended. The complainant saw the coaccused and identified him as the person who took out the mobile phone from his pocket. Thereafter, accused Prashant @ Vijay @ Rahul was interrogated. Upon interrogation accused Prashant @ Vijay @ Rahul got the mobile phone recovered from his house which was seized by me vide seizure memo Ex.PW 1/C bearing his signatures at point B. Thereafter, accused Prashant @ Vijay @ Rahul was arrested vide arrest memo already Ex.PW1/E bearing his signature at point B. The accused Prashant @ Vijay @ Rahul was also personally searched vide memo Ex.PW1/G bearing his signatures at point B. PW2 further deposed that he also prepared the recovery site plan which is Ex.PW2/C bearing his signature at point A. PW2 had also recorded the FIR No.522/17, PS Punjabi Bagh, State Vs. Rahul & Ors. Page No. 4 of 9 statement of Constable Umer and Complainant Tassavvar Khan. On the next day, PW2 recorded the disclosure statement of both the accused persons which are Ex.PW2/C1 and Ex.PW2/C2 both bearing his signatures at point A respectively. Thereafter, PW2 got the date of birth of the accused persons verified. PW2 recorded the statement of witnesses and submitted the case property in the malkhana. The case property was released to the owner on superdari vide panchnama Ex.PW2/C3 bearing his signature at point A. After completion of investigation, PW2 concluded the charge sheet and filed the charge sheet before the court. PW2 served notice u/s 91 Cr PC to the Nodal Officer vide letter Ex.PW2/D bearing his signature at point A. PW1 has correctly identified the accused persons and the case propery. The photograph of the case property is Ex.P1 (Colly).
04. After examining PW2, it was submitted by ld. Counsel for accused persons that the star witness of the prosecution has failed to identify the accused persons and there is no need to examine any other witness. On the other hand, Ld. APP sought one more opportunity for the same. Perusal of the file shows that the star witness has already failed to identify the accused person and thus is declared hostile on the point of identification and it would be a futile exercise to examine the remaining witnesses. Thereafter, after examining the PW2, PE was directed to be closed. Thereafter, statements of the accused persons were recorded and they chose not to lead evidence in their defence. Thereafter, matter was listed for final arguments.
05. Final arguments have been heard from both sides. Record has been carefully perused.
06. The essential ingredients for punishment under Section 392/411 FIR No.522/17, PS Punjabi Bagh, State Vs. Rahul & Ors. Page No. 5 of 9 IPC are as follows:
1. The accused committed theft;
2. He voluntarily caused or attempted to cause;
(i) death, hurt or wrongful restraint,
(ii) fear of instant death, hurt or wrongful restraint;
3. He did either act for the end:
(I) of committing theft,
(ii) while committing theft,
(iii) in carrying away or in the attempt to carry away property obtained by theft.
07 In order to prove an offence u/s 411 IPC, the following ingredients need to be proved: i. The property should be in possession of the accused. ii Such property should be 'stolen property' i.e it should have been transferred by theft, extortion or robbery, or which has been criminally misappropriated.
iii. The accused had received the same knowing or having reason to believe the same to be stolen property.
08. The entire prosecution case for the commission of offence of robbery against the accused is based on the statement of the complainant/eye witness whereby he narrated the incident of alleged robbery by the accused persons, to police authorities. Prosecution case of commission of offence of robbery after hurting to the complainant and the such act of accused cannot be considered to be standing on its own legs without the testimony of complainant/eye witness asserting the facts mentioned in his statement / before the police / IO.
09. It is pertinent to mention here that the star witness of the Prosecution in the instant case is complainant/eye witness (PW1) Tasabbar Khan. PW1 had turned hostile. The law on appreciation of evidence in the event of witness turning hostile was discussed by the Hon'ble Supreme Court in case titled as Sat Paul Vs. Delhi Administration, AIR 1976 SC 294. The relevant extract of the FIR No.522/17, PS Punjabi Bagh, State Vs. Rahul & Ors. Page No. 6 of 9 same is reproduced below for ready reference: "....even in a criminal prosecution when a witness is cross examined and contradicted with a leave of the court by the party calling him, his evi dence cannot, as a matter of law, be treated as washed off the record al together. It is for the judge of fact to consider in each case whether as a result of such cross examination and contradiction, the witness stands throughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, ac cept, in the light of the other evidence on the record, that part of his testi mony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto.....".
10. Now coming back to the facts of the instant case, the complainant/eye witness (PW1) Sh. Ramesh Kumar had turned hostile. The relevant extract of the examination in chief are reproduced below for ready reference: "I am a Carpenter by profession. On 26092017 I had gone to Madipur Subzi Mandi and at about 8.20 PM I went to Public Toilet and when I came out from there, two boys came to me and one of the boy had caught hold of me from behind and pressed my neck from front. The second boy took out my mobile phone Micromax of white colour from the pocket of my wearing shirt. They had also beaten me with fists and leg blows and started to run away from there. I had raised an alarm for shouting Chor Chor and one police official coming from front side had apprehended one of the accused with the help of public persons. The public person also beaten the accused. On interrogation, the name of the accused was dis closed as Rahul and he disclosed the name of his associate as Rahul @ Prashant.
Public person called the police at 100 number and after sometime police came at the spot. In the meantime, I had went to Doctor as I had suffered injury in my leg. I was called to the PS by the police on the same day where my statement was recorded by the police which is Ex. PW1/A bearing my thumb impression at point A. FIR No.522/17, PS Punjabi Bagh, State Vs. Rahul & Ors. Page No. 7 of 9 At this stage, site plan, seizure memo of mobile phone, arrest memo of Rahul and Prashant @ Rahul and personal search memo of both ac cused persons are shown to the witness and witness correctly identifies his thumb impression at point A on each document which are now exhib ited as Ex. PW1/B to Ex. PW G respectively.
After sometime, my mobile phone was recovered and I got the same released on superdari vide superdarinama alongwith affidavit Ex. PW 1/H bearing my signature at point A. I cannot identify the accused persons as from the spot I went to the doctor and accused persons were not apprehended in my presence.
I can identify the case property i.e. my mobile phone make Micro max White colour if shown to me. At this stage, four photograph of the mobile phone make Micromax are shown to the witness who correctly identifies the same. The photographs are Ex P1 (Colly.) At this stage, Ld APP for the State wants to crossexamine the wit ness as he is resiling from his previous statement.
Xxxxx by Ld APP for the State.
Attention of the witness is drawn to accused persons but witness submits that he cannot identify them. It is wrong to suggest that I am de liberately not identifying the accused persons today as I have been won over by the accused persons. It is wrong to suggest that I am not disclos ing the identity of the accused persons with the connivance of the ac cused persons."
11. The PW1 had failed to identify the accused, which create serious doubt to the story of the prosecution. It is a settled preposition that the accused cannot be convicted in the case, where the eye witness/main witness had failed to identify the accused.
CONCLUSION
12. 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 FIR No.522/17, PS Punjabi Bagh, State Vs. Rahul & Ors. Page No. 8 of 9 improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
13. In view of the foregoing reasons, I hold that the prosecution has failed to prove the charge against the accused persons, beyond reasonable doubt. The benefit of any lacunae, left in the investigation, has to be given to the accused persons. For the foregoing reasons, accused persons namely Rahul and Prashant Vijay is entitled to acquittal. Accused are therefore acquitted for the offences u/s 392/411/34 IPC. File be consigned to record room after due compliance.
Announced in the open Court,
On 28.11.2019 (MANU VEDWAN)
MM01 (West)/Delhi:28.11.2019
FIR No.522/17, PS Punjabi Bagh, State Vs. Rahul & Ors. Page No. 9 of 9
FIR no.522/17
Case No.7866/17
PS Punjabi Bagh
28.11.2019
Present: Ld. APP for the State.
Both accused in person with ld. counsel.
PW2 SI Baljor, examined, crossexamined and discharged. At this stage, it is submitted by ld. Counsel for the accused that accused is being harassed by the witness by not appearing in the court. It is further submitted that PE may be closed as already sufficient opportunity have been given to prosecution to complete the evidence. It is further submitted that no purpose will be served as complainant failed to identify the accused. On the other hand, Ld. APP seeks one more opportunity to complete the prosecution evidence.
Heard. Perused the file.
Already sufficient opportunities have been given to the prosecution to complete the PE but to no avail. No further opportunity can be granted and hence, PE stands closed.
Statement of both accused recorded. Final arguments heard. Vide separate judgment pronounced in the open court today, both accused Rahul and Prashant Vijay are acquitted for the offence u/s 392//411/34 IPC. At request, bail bond of accused earlier furnished is accepted in compliance of section 437A Cr.P.C. Nothing remains to be done further in the present case.
File be consigned to record room after due compliance.
(Manu Vedwan) MM01/West/THC Delhi:28.11.2019 FIR No.522/17, PS Punjabi Bagh, State Vs. Rahul & Ors. Page No. 10 of 9