Delhi District Court
State vs (1)Sonu Nagar on 12 September, 2014
IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS
JUDGE (EAST) : KARKARDOOMA COURTS, DELHI
SC No.47/2011
Unique Case ID No.02402R0302482011
FIR No.376/2009
Police Station Krishna Nagar
Under Section 392/397/34/506 IPC
State Versus (1)Sonu Nagar
S/o Sumant Nagar
R/o H.No.90, Gali No.5,
Tukmirpur Extn., Delhi.
(2)Neeraj Sharma @ Bantu
S/o Ram Mohan Sharma
R/o G251, Gali No.33,
Pusta Road, W. Karawal Nagar, Delhi.
Date of Institution : 07.12.2011
Date of judgment reserved : 04.09.2014
Date of judgment : 12.09.2014
JUDGMENT
Two accused, persons, namely, Sonu Nagar and Neeraj Sharma @ Bantu have been sent to face trial by the police of SC No.47/2011 State Vs. Sonu Nagar etc. Page 1 of 22 Police Station Krishna Nagar in FIR No.376/2009 under Section 392/397/34/506 IPC.
2 Facts, in brief, are that on 28.09.2009, complainant Ram Richh Pal (PW10) came in Police Post Seelampur and made his statement Ex.PW9/A to SI J.K. Singh (PW9). In his statement complainant stated that he was engaged in the business of embroidery machines. In the night intervening 27/28.09.2009 at about 12.0012.30 a.m., he was having business meeting and Committee dealing with Jugal Kishore, Akash, Kashmiri, Pawan, Dabbu and Mavali in a room on the second floor of C1, Main Road, Kanti Nagar in front of Bullet showroom. In the meantime, accused Neeraj Sharma @ Bantu and Nagar who were earlier known to him along with two other associates came to the room and all of them armed with weapons. Accused Bantu threatened them that they had been handsomely transacting and were earning huge profits and that who would pay their DADAGIRI tax. Thereafter, accused Bantu and his associates got removed four chains and seven rings from complainant and his friends. Accused persons also took cash of Rs.6,10,000/. Thereafter, they fled away from there after extending threat to their life. Complainant made a call at number 100 and thereafter made his statement in the police SC No.47/2011 State Vs. Sonu Nagar etc. Page 2 of 22 post.
3 On the statement Ex.PW9/A of the complainant (PW10), SI J.K. Singh made his endorsement Ex.PW9/B for registration of FIR under section 386/34/506 IPC. Duty officer ASI Tej Pal Singh (PW2) registered the FIR Ex.PW2/B and made his endorsement Ex.PW2/A on the rukka Ex.PW9/B. After registration of FIR, Ct. Balesh (PW1) came at the spot and handed over original rukka along with copy of FIR to SI J.K. Singh (PW9). During investigation, SI J.K. Singh reached the spot along with complainant and prepared site plan Ex.PW9/C. He recorded statements of witnesses.
4 O 24.10.2009, accused Sonu Nagar was apprehended who made disclosure statement Ex.PW3/A. He was arrested vide arrest memo Ex.PW3/B and his personal search was conducted vide memo Ex.PW3/C. On 26.10.2009 again, disclosure statement Ex.PW3/D of accused Sonu Nagar was recorded. He got recovered part of the robbed cash of Rs.5,000/ Ex.P1 wrapped in a newspaper from underneath Sofa cushion of his house which was seized vide memo Ex.PW3/E. Accused Sonu Nagar disclosed that he committed robbery along with his associates Neeraj Sharma, Abid, Junaid, SC No.47/2011 State Vs. Sonu Nagar etc. Page 3 of 22 Bhupender and Sharafat. Further investigation of the case was assigned to HC Rajbir (PW12).
5 On 09.11.2009, HC Rajbir (PW12) along with HC Satpal reached in front of C1, Main Kanti Nagar. A secret information was received that one of the accused of the present case was available in his house G551, Gali No.33, Karawal Nagar, Delhi. On the basis of secret information, accused Neeraj Sharma @ Bantu was apprehended. Complainant Ram Richh Pal also reached there and identified accused Neeraj Sharma. He was arrested vide arrest memo Ex.PW3/G and his personal search was conducted vide memo Ex.PW3/H. He made disclosure statement Ex.PW3/F. During investigation, accused Neeraj Sharma got recovered robbed cash of Rs. 10,000/ Ex.P2 which was taken into police possession vide Ex.PW3/J. Thereafter, accused took the police party to Etawah for getting his associates Bhupender and Sharafat arrested, but they could not be arrested.
6 Another accused Bhupender was arrested in FIR No. 206/10 Ex.PW13/B u/s 186/353/332/307/34 IPC and Section 27 Arms Act, PS Karawal Nagar. His disclosure statement Ex.PW13/A was recorded in that case in which he disclosed his involvement in the SC No.47/2011 State Vs. Sonu Nagar etc. Page 4 of 22 present case. The application for TIP of accused Bhupender @ Bhupi was marked to Ms. Sunena Sharma (PW14), Ld. MM and the same was fixed for 07.09.2010 vide endorsement Ex.PW14/A. The accused was identified by Asstt. Supdt. vide endorsement Ex.PW14/B. During TIP proceedings, complainant failed to identify accused Bhupender. His statement was recorded vide endorsement Ex.PW14/C. Ld. MM gave her conclusion vide endorsement Ex.PW14/D. Witness was identified by the IO vide endorsement Ex.PW14/E. Since accused Bhupender could not be identified by the complainant as one of the robbers, accused Bhupender was discharged. Accused Abid could not be arrested despite efforts.
7 After completion of the investigation, chargesheet was filed in the Court of Ld. M.M. who after complying with provisions of section 207 Cr.P.C. committed the case to the Court of Sessions which in turn assigned the case to this Court for trial in accordance with law.
8 After hearing Ld. Counsel for the accused persons and Ld. Addl. PP for the State, charges under Section 392/506/34 were framed against both the accused. Separate charges under section 397 IPC were also framed against both the accused persons. Accused SC No.47/2011 State Vs. Sonu Nagar etc. Page 5 of 22 persons pleaded not guilty to the charges framed against them and claimed a trial.
9 In order to prove its case, prosecution has examined 17 witnesses. PW10 Ram Richh Pal is the complainant, whereas PW4 Ravinder Chaudhary @ Dabbu, PW5 Kashmiri Lal, PW6 Akash Gupta, PW7 Jugal Kishore, PW8 Pawan Bhagat, PW15 Neeraj Sharma and PW16 Mohd. Yamid @ Mavali are the other public witnesses. PW1 HC Baleshwar Dayal, PW2 ASI Tej Pal Singh, PW3 HC Satyapal, PW9 SI J.K. Singh, PW11 SI Ravi Kumar, PW12 HC Rajbir, PW13 ASI Ashok Kumar and PW17 Insp. K.K. Tiwari are the police officials. PW14 Ms. Sunena Sharma conducted TIP proceedings of accused Bhupender.
10 After completion of prosecution evidence, statements of accused persons under section 313 Cr.P.C. were recorded in which they have denied the case of the prosecution and have stated that they are innocent and have been falsely implicated in the present case. Accused persons opted not to lead any evidence in their defence. 11 I have heard. Ld. Addl. PP for the State as well as Ld. Counsel for accused persons. I have meticulously gone through their submissions and material available on record.
SC No.47/2011 State Vs. Sonu Nagar etc. Page 6 of 22 Robbery 12 Case of the prosecution is that on the day of incident, a robbery had taken place in the premises where the complainant and other public witnesses were having business dealing and also committee transaction. It is alleged against the accused persons that they committed robbery of cash of Rs.6.10 lacs and gold chains/rings of PW10 complainant and other persons i.e. PW4 to PW8 and PW16. 13 Complainant Ram Rich Pal (PW10) has testified that he did not remember the exact date but it was before Diwali festival in the year 2009. He along with his brother late Sh. Ashok Kumkar went to a premises where bullet showroom was situated in Krishna Nagar. They reached at second floor for taking the premises on rent where one Jugal Kishore, his brother Ashok, his nephew Vikas, Pawan, Kashmiri Lal and one Dabbu were sitting. They were talking and time might be 12.00 night. Meanwhile, accused Bantu along with four other boys came there and they asked them for money as they had been working there and thereafter associates of accused Buntu took out pistol and then they looted them. PW10 further stated that he was robbed of Rs.1,25,000/ and two gold rings, while his friends and SC No.47/2011 State Vs. Sonu Nagar etc. Page 7 of 22 nephew were robbed by accused Buntu and his associates by using the arms. Thereafter, accused and his associates ran away after looting them. Police reached there. His statement Ex.PW9/A was recorded by the police. Case was registered. Thereafter, they returned back to their house. He did not point out the place of occurrence to the police. Looted articles were not recovered. Thereafter, he was called by the police at Tihar Jail to identify the accused persons, but he could not identify any of the associates of Buntu.
14 Complainant (PW10) was declared hostile by the prosecution and was cross examined by Ld. Addl. PP for the State. In his cross examination by Ld. Addl. PP, he has stated that statement Ex.PW9/A was recorded by the IO as per his version and he had read and thereafter signed the same. He denied that he had stated name of accused Nagar in his statement Ex.PW9/A. He denied that he knew accused Nagar since earlier. He denied having stated that 4 gold chains and 7 gold rings were removed from their person and accused Buntu along with his associates robbed them of those articles apart from cash of Rs.6,10,000/. He further denied that he had pointed out the spot where he and his friends/relatives were robbed by accused Buntu and his associates. He further denied that police had gone for SC No.47/2011 State Vs. Sonu Nagar etc. Page 8 of 22 the search of accused persons in the area of Shanti Mohalla, Raghubar Pur and Chand Mohalla and on that day he named accused Sonu Nagar and also told that when accused Buntu and Sonu Nagar left, they had threatened to kill them with deadly weapons. He denied that on 09.11.2009, accused Neeraj @ Buntu was apprehended or that he identified accused Neeraj. He further denied that on 24.10.2009, accused Sonu Nagar was apprehended in his presence. 15 During crossexamination by ld. defence counsel, witness PW10 has stated that his signatures on Ex.PW3/A to Ex.PW3/F were obtained in the police station without reading contents of those documents. He further stated that entire statement Ex.PW9/A was not read over to him by the police nor he knew what was written by police in Ex.PW9/A. He stated that he did not meet the police in connection with the present case except when he went to Tihar Jail. 16 There are serious inconsistencies in the testimony of complainant Ram Rich Pal (PW10). In his examination in chief, he has not stated anything against accused Sonu Nagar. Though, he has stated that accused Neeraj Sharma @ Bantu along with his associates robbed him and his friends on the day of incident, but during his cross examination by ld. defence counsel, he has stated that the statement SC No.47/2011 State Vs. Sonu Nagar etc. Page 9 of 22 Ex.PW9/A made by him to the police was not read over to him completely nor did he know what was written in it.
17 A perusal of statement Ex.PW9/A shows that the complainant had stated to the police that on the day of incident, he was robbed by accused Sonu Nagar and Neeraj Sharma @ Bantu at the point of deadly weapons. But in his testimony before the Court, the complainant has made improvements by not attributing any role of accused Sonu Nagar that he was among the robbers. The complainant was confronted with his statement made to the police, but he has stated that the contents of the same were not read over to him and he did not know what was written in it. A careful scrutiny of statement of complainant shows that it is full of material contradictions and improvements, which makes his testimony shaky, fragile and inconsistent.
18 I have gone through the ratio of judgment of Hon'ble Apex Court in case of Shyamal Ghosh Vs. State of West Bengal AIR 2012 SC 3539 in which it was held that it is only when such omissions amount to a contradiction creating a serious doubt about the truthfulness or creditworthiness of the witness and other witnesses also make material improvements or contradictions before the Court in SC No.47/2011 State Vs. Sonu Nagar etc. Page 10 of 22 order to render the evidence unacceptable, that the courts may not be in a position to safely rely upon such evidence. In another judgment titled State of Gujarat Vs. Ratansingh @ Chinubhai Anopsinh Chauhan MANU/SC/0026/2014, the Hon'ble Apex Court dismissed the appeal of the State while observing that the evidence led by the prosecution was not contradictory, inconsistent and improbable, but it also suffered from vice of improvements and therefore, it was held to be unreliable.
19 In the present case also, the testimony of the complainant (PW10) is found to be unreliable as there are material contradictions and improvements, which makes his deposition unreliable and unworthy of credence.
20 The prosecution has also examined alleged eye witness Ravinder Chaudhary @ Dabbu (PW4). PW4 deposed that he did not remember the date but it was before about 3/4 years. He came to know that theft had been committed in Kanti Nagar where bid of committee taken place. He was also having membership of the committee where bids had to take place. He became the member of the committee through his friend Akash Gupta with one Shripal, known as Pahalwal also. He was not present when theft had taken SC No.47/2011 State Vs. Sonu Nagar etc. Page 11 of 22 place. He did not know anything more about this case. However, when he came to know about the theft, he along with Akash Gupta, Pahalwan and other persons went to PS Krishna Nagar and he was enquired about his membership of the committee and he accordingly informed the police about the membership of the committee being run by Pahalwan. His statement was not recorded by the police. His membership with the committee was of Rs.5 lacs for 25 months and one bid had to take place every month. He stated that he did not know any of the accused, present in the Court.
21 PW4 was declared hostile by the prosecution and was cross examined by Ld. Addl. PP for the State. During his cross examination, PW4 has admitted that it was the night of 2829/09/2009 when meeting of the committee was held at House No.1, Kanti Nagar Main, Krishna Nagar, Delhi. He denied that Rich Pal Gupta, Jugal Kishore, Akash Gupta, Kashmiri Lal and Yamid Mohd. @ Babli were present in the meeting and they were settling the account. He further denied that 4 persons armed with weapons consisting of one Neeraj Sharma @ Bantu reached there. He further denied that Neeraj Sharma @ Bantu intimidated him and other persons as to who would pay Dadagiri tax and by using weapons, they robbed gold ring, cash of rs. SC No.47/2011 State Vs. Sonu Nagar etc. Page 12 of 22 82,000/ from him and other persons by putting them under the fear of death and extended threats to them. He further denied that he had been influenced and terrorized by accused Sonu Nagar and Neeraj Sharma. 22 The prosecution has also examined Kashmiri Lal (PW5), Akash Gupta (PW6), Jugal Kishore (PW7), Pawan Bhagat (PW8) and Mohd. Yamid @ Mavali (PW16) who were allegedly the eye witnesses of the incident and were the victims of the robbery. But all these witnesses have not stated in their testimony anything against the accused persons. They have not stated that accused persons were among the robbers. Even after declaring them hostile by the Ld. Addl. PP for the State and during crossexamination, these witnesses have denied the entire case of the prosecution. They have denied that accused persons committed robbery with them on the day of incident. 23 Therefore, there is nothing in the testimony of these witnesses (PW4 to PW8 and PW16) to link any of the accused with the commission of robbery committed on the day of incident. As regards identification of robbed money is concerned, the prosecution did not put recovered cash to these witnesses to get it identified from them, therefore, the recovery of alleged robbed money from the accused persons has also not been proved. So, the testimony of these alleged SC No.47/2011 State Vs. Sonu Nagar etc. Page 13 of 22 eye witnesses/victims is completely of exonerating nature and do not connect any of the accused persons as the perpetrator of the crime in the present case.
24 Prosecution has also examined another public witness PW15 Neeraj Sharma. PW15 has stated that he was the owner of property No.C1, Main Road, Kanti Nagar, Delhi. In the month of September 2009, he had let out first floor portion of abovesaid property on monthly rent of Rs.2,000/ to Ashok Kumar Balli on the basis of oral agreement. Ashok Kumar Balli was running a committee and number of persons used to visit him. After incident of the present case, he got vacated his premises from Ashok Kumar Balli. 25 The testimony of PW15 Neeraj Sharma is of no help to the prosecution as he was not the eye witness of the alleged incident of robbery. As per testimony of PW15, he let out the portion of his property to one Ashok Kumar Balli who used to run committee. There is nothing in the testimony of this witness to connect any of the accused with the offence of the present case.
26 In the present case, prosecution has examined the complainant Ram Rich Pal (PW10), PW4 to PW8 and PW16 who are alleged to be the victims of the robbery committed at their premises. SC No.47/2011 State Vs. Sonu Nagar etc. Page 14 of 22 But witnesses PW4 to PW8 and PW16 have not stated anything against any of the accused and the testimony of PW10 found to be unreliable and unworthy of credence. They have not identified any of the accused as robbers. There is no other evidence against the accused persons that they committed robbery on the day of incident. 27 There is also no evidence on record to establish the criminal intimidation by any of the accused to the complainant and his friends/relatives. Neither the complainant nor any other victim of the robbery has stated anything against the accused persons that they criminally intimidated them on the day of incident. It is pertinent to mention that the robbery by accused persons itself has not been proved beyond reasonable doubt. The presence of accused persons on the day of incident at the spot has also not been established beyond reasonable doubt. Therefore, the prosecution has also failed to establish that accused persons criminally intimidated the complainant and his friends /relatives on the day of incident.
28 In view of above discussion, I am of the considered opinion that the prosecution has failed to establish beyond reasonable doubt that accused Sonu Nagar and Neeraj Sharma committed robbery on the day of incident or that they criminally intimidated the SC No.47/2011 State Vs. Sonu Nagar etc. Page 15 of 22 complainant party. Consequently, the prosecution has failed to prove the charge under Section 392/506/34 against both the accused. Identity of accused persons 29 The identity of accused persons being the robbers is in dispute. Identification of these accused persons has not been established from the testimony of complainant (PW10) as his testimony is found to be full of material contradictions and improvements and unreliable. Identity of accused persons being robbers has also not been proved from the testimony of other alleged eye witnesses (PW4 to PW8 and PW16) in the Court. In their entire testimony, all these witnesses have not stated anything against the accused persons that they were the robbers or that they had commited robbery on the day of incident. These circumstances show that accused Sonu Nagar and Neeraj Sharma @ Bantu have not been identified by these witnesses being robbers.
30 I have gone through the ratio of judgment in case titled Prem Singh vs. State of (N.C.T.) of Delhi (Crl. Appeal No.589 of 2002 decided by Hon'ble Supreme Court on 24.04.2009) in which it was held that when the witness/injured could not identify the accused to be the person who fired at him, accused could not have been SC No.47/2011 State Vs. Sonu Nagar etc. Page 16 of 22 convicted for offence charged. In the present case also, the identity of accused persons being the perpetrators of crime has not been established.
31 I have also gone through another judgment in case titled Chellappan Mohandas and others vs. State of Kerala AIR 1995 SC 90 wherein the conviction of appellants was set aside as the eye witnesses turned hostile and gave a distorted version. In another case titled State of UP vs. Shri Krishan AIR 2005 SC 762, the Hon'ble Supreme Court has upheld the acquittal of accused persons while observing that eye witnesses of the incident have turned hostile and it was not a case to interfere with an order of acquittal. The ratio of above authorities is squarely applicable to the facts of the present case as the identity of both the accused being robbers has not been established beyond reasonable doubt.
32 Thus, the prosecution has failed to establish the identity of accused Sonu Nagar and Neeraj Sharma @ Bantu beyond reasonable doubt being robbers who committed robbery of articles and money of complainant and his friends/relatives on the day of incident. Use of weapon 33 It is also alleged against accused Sonu Nagar and SC No.47/2011 State Vs. Sonu Nagar etc. Page 17 of 22 Neeraj Sharma that they used deadly weapons i.e. knife and country made pistol at the time of commission of robbery of the articles as well as money from complainant and his relatives/friends. 34 The testimony of complainant (PW10) has been found to be unreliable as the same is full of material contradictions. The prosecution has failed to establish beyond reasonable doubt the identify of accused persons being robbers from the testimony of complainant. The testimony of other alleged eye witnesses/victims (PW4 to PW8 and PW16) is also of no help to the prosecution as they have not stated anything against any of the accused. They have not stated anything against accused persons that they were the persons who, on the day of incident, committed robbery. None of the above witnesses has stated anything that any robbery was committed by the accused persons, what to say on the point of any deadly weapon. 35 It is also a fact that Investigating Officer has not effected recovery of weapon of offence i.e. knife which was allegedly used by accused Sonu Nagar and country made pistol which was allegedly used by accused Neeraj Sharma at the time of alleged robbery. In the absence of recovery of weapon of offence, it can not be said that these accused persons used the deadly weapon at the time SC No.47/2011 State Vs. Sonu Nagar etc. Page 18 of 22 of alleged offence when the victims of the incident have not identified accused persons being robbers. Nonrecovery of weapon of offence also proved fatal to the case of prosecution.
36 In similar circumstances, in the judgment titled Siri Om Vs. State of Haryana (1998 (2) RCR (Criminal) 333), it was held that Section 397 IPC is divided into two parts. It was observed that if a robbery or dacoity is committed with a deadly weapon and that deadly weapon is not recovered or produced, the ingredients of Section 397 would not be attracted.
37 In the present case also, the weapon of offence i.e. knife and country made pistol allegedly used by accused persons in the commission of alleged robbery have not been recovered by the police. It is also not the case of prosecution that any hurt was caused by accused persons with such weapons on the person of any of the victim of the robbery. In the absence of identification of accused persons and in view of nonrecovery of weapons of offence, I am of the considered opinion that the prosecution has failed to make out any case against accused Sonu Nagar and Neeraj Sharma beyond reasonable doubt that any weapon of offence was used by them.
SC No.47/2011 State Vs. Sonu Nagar etc. Page 19 of 22 Conclusion 38 The identity of accused persons being robbers has not been established in the Court. The complainant (PW10) has made inconsistent statement in the Court. When he was confronted with his statement made to the police, several material discrepancies and contradictions were noticed. In his statement made to the police, he had stated that both the accused persons committed robbery at his premises, but during his deposition in the Court, he has completely exonerated accused Sonu Nagar. During crossexamination, he put another dent to the case of prosecution by saying that the statement made to police which was the basis for registration of FIR was not read over to him nor did he know what was written in it. The testimony of complainant is unreliable and unworthy of credence and cannot be made a basis to convict the accused persons as the identity of accused persons being the robbers has not been established beyond reasonable doubt.
39 So far as other victims i.e. PW4 to PW8 and PW16 are concerned, they have not stated anything against the accused persons. They have also not identified any of the accused as the robbers. Therefore, the identity of accused Sonu Nagar and Neeraj SC No.47/2011 State Vs. Sonu Nagar etc. Page 20 of 22 Sharma @ Bantu being robbers has not been established. 40 The prosecution has also failed to establish on record beyond reasonable doubt that any of the accused was present at the spot at the time of incident. The case of the prosecution rests upon the testimony of complainant (PW10) and other victims (PW4 to PW8 & PW16) who failed to identify accused persons as the culprits who robbed them on the day of incident. No other material has been brought on record by the prosecution to connect accused persons with the commission of robbery on the day of incident. The prosecution has also failed to prove beyond reasonable doubt use of deadly weapon by accused persons at the time of alleged robbery as the robbery itself by accused persons has not been proved beyond reasonable doubt. 41 No evidence has come on record that the accused persons criminally intimidated the complainant party on the day of incident. Neither the complainant nor the other victims of the alleged robbery have stated anything against the accused persons that they criminally intimidated them on the day of incident. 42 In view of the above discussion, accused Sonu Nagar and Neeraj Sharma @ Bantu are hereby acquitted from the charges framed against them under Section 392/506/34 and 397 IPC. Both the SC No.47/2011 State Vs. Sonu Nagar etc. Page 21 of 22 accused are directed to comply with the provision of Section 437A of Cr.P.C.
Announced in the open Court ( P.S. TEJI )
Dated: 12.09.2014 District & Sessions Judge (East)
Karkardooma Courts, Delhi
SC No.47/2011 State Vs. Sonu Nagar etc. Page 22 of 22