Delhi District Court
State vs Sanjay on 9 November, 2023
IN THE COURT OF SH. SATISH KUMAR,
ADDITIONAL SESSIONS JUDGE - 03, NORTH DISTRICT
ROHINI COURTS, DELHI
CNR No.DLNT01-004459-2023
Crl. Appeal No.108/2023
FIR No.442/2021
u/s 392/411/34 IPC
PS Alipur
State
(Through Public Prosecutor, Delhi)
........Appellant
Versus
1. Sanjay,
S/o Sh. Vasudev,
R/o 1557, Block-D,
J.J. Colony, Bawana,
Delhi Narela Industrial Area,
Delhi.
2. Ishtiyaq,
S/o Sh. Mohd. Rhemad,
R/o 1150, Block-B,
Bawana, Delhi. .......Respondents
Date of filing of Criminal Appeal : 28.04.2023 Date on which arguments were heard : 06.11.2023 Date of pronouncement of judgment : 09.11.2023 ORDER ON APPEAL U/S 378 OF CR.P.C. AGAINST THE ORDER OF ACQUITTAL OF THE ACCUSED PERSONS VIDE IMPUGNED ORDER DATED 27.05.2022 PASSED BY THE COURT OF LD. CMM, NORTH, ROHINI COURTS, DELHI
1. Vide this order, I shall decide the appeal filed by the appellant Crl. Appeal No.108/2023 State Vs. Sanjay & Anr. Page No. 1 of 6 i.e. The State against the impugned judgment dated 27.05.2022 passed by the court of ld. CMM, North-District, Rohini Court, Delhi whereby both the accused persons (respondents herein) were acquitted.
2. The brief material facts to decide the instant appeal are that on dated 15.06.2021 at about 1.25 pm at 20 Kilo Road near Jindpur, Hanuman Mandir, Delhi both the accused persons had committed robbery of one bag containing cash of Rs.17,000/- and mobile phone of Realme 6 from complainant and accused Ishtiyak was found in possession of sim of complainant and accused Sanjay was found in possession of robbed mobile phone of complainant on 21.06.2021, as per Seizure Memo. Upon that, FIR was registered and accused persons were arrested. After carried out the investigation, chargesheet was filed and the charge u/s 392/411/34 IPC was framed against both the accused persons and after concluding the trial, both the accused persons were acquitted by the ld. Trial court vide impugned judgement dated 27.05.2022 and aggrieved against the said impugned judgment passed by the ld. Trial court, the present appeal has been filed by the State on the following grounds:
a) That, admittedly incident happened on 15.06.2021 and recovery was effected on 21.06.2021.
b) That, the ld. Trial court failed to appreciate the fact of recovery and wrongly closed the prosecution evidence and Crl. Appeal No.108/2023 State Vs. Sanjay & Anr. Page No. 2 of 6 wrongly acquitted the accused persons in Section 411 IPC.
However, witness failed to identify both the accused in Section 392/34 IPC.
c) That, to establish the case against the accused persons u/s 411 IPC, examination of recovery of witnesses are essential.
d) That, without examination of recovery witnesses, acquittal u/s 411 IPC is not proper in the eyes of law.
That, by way of the present appeal, it is prayed that the impugned judgment dated 27.05.2022 in case FIR No.442/21 u/s 392/411/34 IPC PS Alipur of acquitting both the respondent may kindly be set aside and the appeal of the State may kindly be allowed.
3. Ld. APP for the State has argued that the recovery has been affected from the possession of both the accused and ld. Trial court has failed to appreciate this fact and make a submission that the impugned judgement dated 27.05.2022 whereby both the accused have been acquitted by the ld. Trial court may kindly be set aside.
4. Ld. counsel for both the respondents/accused has submitted that nothing has been recovered from the possession of any of the accused and they have been falsely implicated by the Police in connivance with the complainant and make a submission that the appeal filed by the State is time barred also and the same Crl. Appeal No.108/2023 State Vs. Sanjay & Anr. Page No. 3 of 6 may kindly be dismissed.
5. Having heard the submissions made by ld. APP for the State who has filed the appeal as well as ld. Counsel for both the respondents and after gone through the impugned judgment dated 27.05.2022 and after gone through the trial court record, this court is of the considered view that PW1 was the star witness who was examined by the prosecution to prove their case against both the accused persons beyond all reasonable doubts but the PW1/complainant could not identify any of the accused in the court.
6. It is worth mentioning that perusal of the complaint made by PW1 before the Police upon which an FIR has been registered, there is no mentioning that the accused persons were in muffled face at the time of the alleged commission of offence. However, in the examination-in-chief, he has deposed that 'I cannot identify the accused persons present in the court today as they had covered their faces with white cloth'. The statement made by the complainant before the Police as well as in the court is altogether different and is not sufficient to establish and to prove the case of the prosecution against any of the accused beyond all reasonable doubt.
7. The main grievance of the State is that the recovery has been effected from the possession of both the accused and both the Crl. Appeal No.108/2023 State Vs. Sanjay & Anr. Page No. 4 of 6 accused may be convicted u/s 411 of IPC. The prosecution has also not been able to prove this fact before the ld. Trial court inasmuch as the recovery of the mobile phone and the sim card alleged to have been made in the Police Station from the possession of both the accused and in the presence of the complainant. However, it has been deposed by PW1 that on dated 21.06.2021, he went to the Police Station and found that two accused persons were sitting there. This witness has nowhere deposed that the recovery of mobile phone and the sim card was made in his presence from the possession of any of the accused. Perusal of the Seizure Memo, Realme mobile phone, the same bears the signature of the accused Sanjay but the Seizure Memo Techo Mobile phone and Jio sim does not bear the signature of accused Mohd. Ishtiyaq. The alleged Seizure Memo is only signed by Police Officials and the same has not been signed either by the complainant or any other independent public witness. Therefore, the recovery of Realme mobile phone from the possession of the accused Sanjay and Techo mobile phone and Jio sim from the possession of the accused Ishtiyaq is doubtful and it is the cardinal principle of law when there is any doubt in respect of the recovery of the robbed articles, then, the benefit is to be given to the accused persons and not the prosecution.
8. That, the impugned judgment passed by the ld. Trial court is completely based upon the entire facts and circumstances as Crl. Appeal No.108/2023 State Vs. Sanjay & Anr. Page No. 5 of 6 well as the evidence of PW1 who was the star witness for the prosecution and the ld. Trial court has rightly held that when there is no ground of any case ending in conviction, then, the valuable time of the court should not be wasted for holding the trial only for the purpose of formally completing the procedure. This court has no reason to interfere with the impugned judgment passed by the ld. Trial cour of dated 27.05.2022 inasmuch as there is no illegality or irregularity in the impugned judgement. Therefore, appeal filed by the State stands dismissed.
9. The bail bond stands cancelled and the endorsement on the documents of surety, if any, also stands cancelled.
10. The TCR be sent back to the ld. Trial court with copy of the order on appeal.
10. File be consigned to record room.
Announced in the open court (Satish Kumar)
on 09.11.2023 Addl. Sessions Judge-03, (North)
Rohini Courts, Delhi
Crl. Appeal No.108/2023
State Vs. Sanjay & Anr. Page No. 6 of 6