Delhi District Court
State vs Dharmender on 8 November, 2024
IN THE COURT OF SH. PANKAJ RAI, JMFC-01,
NORTH EAST DISTRICT, KARKARDOOMA COURT, DELHI
STATE VS. DHARMENDER & ANR.
FIR No. 553 / 2009
POLICE STATION BHAJANPURA
U/S 327 / 506 / 34 IPC
Date of institution of the case : 24.05.2010
Date of judgment reserved : 05.10.2024
CNR : DLNE020000052010
Date of commission of offence : 14.12.2009
Name of the complainant : Ravi Kumar
Name and address of accused : (1) Dharmender
(declared absconder v.o.d 18.07.2013)
S/o Sh. Ram Karan,
R/o H No.E-241, Ravidas Gali
Johripur, Delhi.
(2) Manoj Shrivastava
S/o Sh. Balak Ram,
R/o House No. B-16, Ram Gali
Subhash Mohalla, North Ghonda,
Delhi.
Offence complained of : 327 / 451 / 506 IPC
Plea of the accused : Pleaded not guilty
Date of Judgment : 08.11.2024
Final order : ACQUITTED
STATE VS. DHARMENDER & ANR. FIR NO. 553 / 2009 PS BHAJANPURA PAGE NO. 1 / 15
JUDGMENT
CASE OF THE PROSECUTION :
1. The prosecution case, in nutshell, against accused Manoj Shrivastava is that on 14.12.2009 at 9.15 p.m., he alongwith the other accused Dharmender (since absconding), entered in the Dental Care Center of Complainant Ravi Kumar in order to commit offence of grievous hurt and theft with a sharp object/thing and thereby actually committed theft of Rs.10,000/- alongwith two mobile phones and a gold chain of 25 grams and one purse containing the driving licence and Rs.500/-
cash and that they also injured the complainant with said sharp object and also threatened the complainant with dire consequences. On the basis of this complaint, present FIR was registered under section 327/506/34 IPC in PS Bhajanpura.
COURT PROCEEDINGS :
2. Investigation was completed and police report u/s 173 Cr.P.C was filed under sections 327/506/34 IPC. Cognizance was taken accordingly. Accused Manoj Shrivastava and Dharmender were in JC at that point of time and provisions of Section 207 Cr.P.C. was complied with after they were produced in the court.
Both accused persons refused to participate in the TIP proceedings.
CHARGE :
3. After hearing arguments on point of charge, charge for the offence under Section 327/451/506 IPC was framed against both accused Manoj Shrivastava and Dharmender on 16.10.2010 to which they pleaded not guilty and claimed trial.
During course of trial accused Dharmender was declared as absconder/proclaimed person vide order dated 18.07.2013 upon his failure to appear before the court pursuant to the execution of process under section 82 Cr.P.C. STATE VS. DHARMENDER & ANR. FIR NO. 553 / 2009 PS BHAJANPURA PAGE NO. 2 / 15 EVIDENCE OF THE PROSECUTION :
4. In order to substantiate its case prosecution has examined total ten witnesses from PW-1 to PW-10. PW Vijender, Vikal and Ashok were dropped by Ld. APP for the State to avoid repetition of evidence.
5. PW-1 ASI Mahesh Chand was the duty officer who recorded the FIR. He deposed that on 16.12.09 he was posted at PS Bhajanura as D.O. and that his duty hours were 4.00 pm to 12.00 midnight. That on the aforesaid date at about 09.05 pm Ct. Mukesh sent by ASI Rameshewar came to the PS alongwith rukka for registration of FIR. That he made endorsement upon the same is Ex. PW1/A bearing his signature at point A and registered the present FIR whose copy is Ex.
PW1/B bearing his signatures at point A. That after registration of FIR, he handed over original rukka and copy of FIR to Ct. Mukesh to be handed over to ASI Rameshwar as investigation of the present case was marked to him.
5. PW-2 Ravi Kumar was the complainant. He deposed that he was doing private job. He admitted that he does not remember the exact date of incident, however, it occurred around 5-6 years back. He further deposed that he was at dental care clinic at Ghonda Chowk. That the doctor of the said clinic was not present there at that time. That at around 9 p.m., one boy came into clinic covering his face from a handkerchief. That on his asking regarding the reason for his arrival, 4-5 persons came and one of the person hit him from the back on his head. That he fell down. That one person caught hold of his hair and pulled the head downwards. That one person having a sharp edged thing and hit him on the face from that object. That they took away Rs.10,000/- from the galla. That they also snatched the gold chain from his neck. That they also took away two mobile STATE VS. DHARMENDER & ANR. FIR NO. 553 / 2009 PS BHAJANPURA PAGE NO. 3 / 15 phones one Samsung bearing No. 9650417912 and another Nokia bearing No. 9958573610. That they also took away Rs.500-700 from his purse and throw away his purse there. That they asked him about the keys of the clinic. That he disclosed them the whereabouts of the keys from where they took the keys of the clinic. That they also threatened him to keep the head downwards otherwise they will cause injury to him. That they ran away from the spot. That they also tried to lock the main gate of the clinic but failed to do so. That he managed to came out from the clinic and informed the neighbour who is having a hair saloon shop adjacent to the clinic. That he called the police at No. 100 and that the police came at the spot and recorded his statement Ex.PW-2/A bearing his signatures at point A. That PCR took him to the GTB Hospital. That he handed over the copy of bill of mobile of Samsung to the IO which is mark A. In the re-examination by Ld. APP for the State he deposed that it is wrong to suggest that he stated to the police that dental clinic was being run by him. That it is correct that the date of incident is 14.12.2009. That it is wrong to suggest that one of the accused who came first was not having handkerchief and that he saw his face. That it is wrong to suggest that he stated to the police that two boys came from behind and showed some weapon to him and caught hold of him from his hair. He failed to identify the accused persons and deposed that he cannot identify the accused persons as his face was downwards at the time of this incident.
6. PW-3 is ASI Ragender Kumar who recorded disclosure statement of accused Manoj Shrivastava upon arrest in another case. He deposed that on 19.03.2010, he was posted at PS Crime Branch, Sunlight Colony, Delhi as HC. That on that day, Insp. K.P. Singh directed him by order that at Millennium Park, Near ISBT Sarai Kale Khan, SI Sukhbir Malik alongwith his team had STATE VS. DHARMENDER & ANR. FIR NO. 553 / 2009 PS BHAJANPURA PAGE NO. 4 / 15 apprehended accused Dharmender and Manoj accompanied with some illegal weapon (Country made pistol). That, thereafter, he further directed him to investigate the same, vide FIR bearing no.33/10. That at about 06.45 pm, he reached at Millennium Park where he met SI Sukhbir Malik who handed over him a sealed pullanda containing country made pistol and custody of accused Manoj and Dharmender who were already apprehended by him. That he recorded the disclosure statement of accused Manoj Ex. PW3/A bearing his signature at point A in which he disclosed that in December 2009, he alongwith accused Dharmender, Zameel and Amit had committed a robbery in a clinic located at Bhajanpura area where in the evening they robbed Rs.10,000/-, a gold chain and purse from the doctor present there. That he further disclosed that accused Dharmender had sold the said chain to one of his known jewelers. That thereafter, he joined the investigation in the present case. That his statement was recorded under Section 161 Cr.PC by the IO at PS Bhajanpura. He correctly identified accused Manoj in the dock.
7. PW-4 is Inspector Satish Rana who arrested the other accused Dharmender in another case and to whom accused Dharmender (since absconding) further disclosed his involvement in the present case. He deposed that on 13.03.2010, he was posted at Special Cell, Lodi Colony as SI. That on the said day, he was present in the office and that he received information from the secret informer that one person would come at Loni Gole Chakkar flyover alongwith a stolen motorcycle and would also be carrying illegal weapon and that if immediate raid is conducted, then he could be apprehended with the said motorcycle. That, thereafter, the intimation of the same was given to Inspector Subhash Vats who instructed to conduct the raid with the raiding party. That he prepared the raiding party STATE VS. DHARMENDER & ANR. FIR NO. 553 / 2009 PS BHAJANPURA PAGE NO. 5 / 15 consisting of himself HC Vijender, HC Pradeep, Ct. Ashok and ASI Devender and secret informer. That they all proceeded towards the proposed spot i.e. loni gole chakkar road, near flyover at about 05:45 PM and deployed the raiding party. That at about 06:05 PM, one person with a motorcycle make Bajaj model Pulsar colour black was coming from the side of Loni Gole Chakkar and stopped his motorcycle and that they waited for 4-5 minutes. That immediately after the secret informer pointed out the said person as the person whose details were provided earlier, then without wasting any time, he with the help of other police staff apprehended the said person whose name was disclosed as Dharmender. That during his cursory search one country made pistol and two lives cartridges were recovered from his possession and the case n.o. 16/10 under section 25 Arms Act was got registered against him. That the said motorcycle was also found stolen and the accused Dharmender further disclosed his involvement in the present case. That the IO of the case FIR No. 16/10 had recorded the disclosure statement of the accused. That he came back to PS where the accused Dharmender was locked up. That next day he was produced before the court. He also deposed that he can identify the accused Dharmender, if shown to him. Accused Dharmender has already been declared PO.
8. PW-5 is SI Amrik Singh who interrogated the other accused Dharmender (since absconding) and gave the information to the IO regarding disclosure by him of his involvement in present case. He deposed that on 13.03.2010, he was posted at Special Cell, Lodi Colony as ASI. T that on the said day, accused Dharmender was arrested in the case FIR No.16/10. That during interrogation accused Dharmender had disclosed that on 14.12.2009, he alongwith his associate namely, Manoj @ Jameel were present in the area of Bhajanpura and planned to commit the robbery. That he further disclosed that he alongwith his associate had committed STATE VS. DHARMENDER & ANR. FIR NO. 553 / 2009 PS BHAJANPURA PAGE NO. 6 / 15 robbery at the shop of dentist alongwith his associate Manoj. That he further disclosed that they had extended life threats to the said doctor and overpowered him and in pursuance of the same, they had robbed two mobile phones alongwith Rs.10,000/- one gold chain and wallet of the said doctor carrying his driving license and thereafter, they fled away from the spot. That on inquiry, he came to know that with respect to the said incident case FIR No. 553/09 was registered in PS Bhajanpura. That he recorded his detailed disclosure statement Ex. PW5/A bearing my signature at point A. That he passed over the said information at the concerned PS and contacted the concerned IO ASI Rameshwar Prasad and handed over to him the disclosure statement alongwith the copy of FIR no. 16/10. He also deposed that he can identify the accused Dharmender, if shown to him. Accused Dharmender has already been declared PO.
9. PW 6 was Dr. Satish Chandra who prepared the MLC of complainant Ex.PW6/A after the medical examination. He deposed that he was working in the capacity of JR in GTB Hospital, Delhi and that he had prepared the MLC of complainant Ravi wherein alleged history of assault was recorded. He also deposed that in the MLC it was also recorded that there was no history of LOC, vomiting, ENT bleed and that on examination patient was conscious and oriented. That the vitals were also stable. That on examination of complainant, the three injuries on right side of face 5X5 cm, right upper neck 4X.5 cm, left side of hand 2X5 cm caused by sharp edged weapon. That there was also one injury on head i.e vertex 3X.5 c.m. That he had given first aid to injured/patient and referred him surgery department. He identified his signatures on MLC Ex.PW6/A at point A. That the patient was referred to surgery emergency for further management and evaluation.
STATE VS. DHARMENDER & ANR. FIR NO. 553 / 2009 PS BHAJANPURA PAGE NO. 7 / 15
10. PW-7 was Dr. A.K.Gupta who was the CMO of GTB Hospital. He deposed that he was posted as CMO in GTB Hospital, Delhi on 14.12.2009. That on said day one patient/victim Ravi was brought to the casualty with alleged history of assault and that he was attended by Dr. Satish Chandra who was working under his supervision. That he examined the patient, provided first Aid and referred him to surgery department for further evaluation and management. That the MLC bears his name at point B. That he left GTB Hospital in 2011 and government service in 2015.
11. PW-8 was Retd. SI Rameshwar Prasad who was the investigation officer. He deposed that on 16.12.2009, he was posted at PS Bhajanpura as ASI and was present at the PS and that he had received one DD no. 33A dt. 14.12.2009 which was Ex. PW8/A. That he alongwith Ct. Mukesh Kumar went to H. No. A-131, Adarsh Market, yamuna Bazar, Delhi where they met the complainant Ravi kumar and recorded his statement Ex. PW2/A, attested by him at point B. That he prepared rukka Ex. PW8/B bearing his name at point A and handed over the same to Ct. Mukesh for getting the case registered at PS. That Ct. Mukesh went to PS and got the FIR registered and returned back with copy of FIR and original rukka having endorsement of FIR number. That he prepared site plan at instance of complainant which is Ex. PW8/C bearing his signature at point A. That he recorded supplementary statement of the complainant. That he also obtained the final result on the MLC of the complainant Ex. PW6/A. That he searched for the accused but he could not be found. That on 14.03.2010, one DD no. 21B was registered Ex. PW8/D and it was informed that the accused Dharmender who was wanted in the present case, has been arrested by the special cell in case FIR no.16/10 under Section 25 Arms Act. That he received the documents from the IO STATE VS. DHARMENDER & ANR. FIR NO. 553 / 2009 PS BHAJANPURA PAGE NO. 8 / 15 of the case FIR no. 16/10. That on 20.03.2010, one DD no. 18 B was received Ex. PW8/E regarding arrest of another accused Manoj in case FIR no. 33/10 under Section 25 Arms Act, PS Crime Branch, Sunlight Colony and that the accused has made disclosure of the present FIR. That after obtaining due permission from the court, both the accused were interrogated and formally arrested in the present case at Tihar Jail on 25.03.2010 vide arrest memo Ex. PW8/F and Ex. PW8/G, both bearing his signature at point A. That he recorded disclosure statement of both the accused persons which are Ex. PW8/H and Ex. PW8/1, both bearing his signature at point A. That both accused refused the TIP. That copy of TIP order was Ex.PW8/J and Ex. PW8/K respectively. That he completed the investigation and prepared the chargesheet by recording statement of all the PWs and submitted the chargesheet before the court.
12. PW-9 was HC Mukesh Kumar took rukka to the PS for registration of FIR and got the FIR registered. He deposed that on 16/12/2009 he was posted as Constable at PS Bhajanpura. That on said day he along with ASI Rameshwar went to Adarsh Market, Yamuna Vihar wherein they met the complainant. That his statement/complaint was recorded and the Rukka was prepared by the IO Rameshwar which he handed over to him to get the FIR registered. That he went to the PS Bhajanpura and got the FIR registered and came to the spot and handed over the copy of the FIR and Rukka to IO. That his statement was recorded by the IO.
13. PW-10 was ASI Devender. He deposed that on 19/03/2010 he was posted as Constable at PS SOS, Crime Branch, Sunlight Colony. That on that day a secret informer informed them that two persons with illegal arms can be apprehended STATE VS. DHARMENDER & ANR. FIR NO. 553 / 2009 PS BHAJANPURA PAGE NO. 9 / 15 near millenium park. That they conducted the raid and arrested the two accused persons Manoj @ Appu and one another and Sri Ram @ Surender. That during the interrogation Manoj @ Appu disclosed his involvement in the present case. He deposed that he could not tell if either of the accused persons are present in the Court today due to long lapse of time. Thereafter, he correctly identified the accused Manoj standing in the dock when his attention was drawn by Ld. APP for the State. He deposed that he was not able to identify the accused as he was standing behind another accused standing in the dock as well as long lapse of time. (Accused Dharmender already declared PO).
STATEMENT / DEFENCE OF THE ACCUSED :
14. In his statement under Section 313 Cr.P.C., the accused Manoj Shrivastava has pleaded innocence and has claimed that he has been falsely implicated by the police. He did not opt for leading defence evidence. Hence, the matter was fixed for final arguments.
15. Ld. Counsel for accused has argued that the prosecution has failed to prove its case against the accused and that the complainant has not supported the case. That there are many contradictions in testimonies of the prosecution witnesses which goes to the root of the case. On the other hand, Ld. APP submitted that there is no reason to doubt the testimony of complainant and other prosecution witnesses. That the case has been proved against the accused beyond reasonable doubt.
16. The respective submissions of learned APP for the State and learned Counsel for both the accused have been considered. The record has been thoroughly and carefully perused.
STATE VS. DHARMENDER & ANR. FIR NO. 553 / 2009 PS BHAJANPURA PAGE NO. 10 / 15 ANALYSIS AND FINDINGS QUA ACCUSED MANOJ SHRIVASTAVA :
17. It is a settled proposition of law that prosecution is supposed to prove its case beyond reasonable doubt. It is also well settled that in order to prove its case, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. The burden of proving the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused. The accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
18. Accused Manoj Shrivastava is charged under section 327/451/506 IPC. Section 327 and 451 IPC provides as follows:
327. Voluntarily causing hurt to extort property, or to constrain to an illegal act. - Whoever voluntarily causes hurt, for the purpose of extorting from the sufferer, or from any person interested in the sufferer, any property or valuable security, or of constraining the sufferer or any person interested in such sufferer to do anything which is illegal or which may facilitate the commission of an offence, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
STATE VS. DHARMENDER & ANR. FIR NO. 553 / 2009 PS BHAJANPURA PAGE NO. 11 / 15
451. House-trespass in order to commit offence punishable with imprisonment. -- Whoever commits house-trespass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years.
19. Section 503 IPC dealing with Criminal intimidation provides that - Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. This offence is punishable under section 506 of the IPC.
20. Reverting to the present case, the material/star witnesses of the prosecution i.e. Complainant/PW-2 Ravi Kumar has not supported the case of the prosecution on the crucial aspect of identity of the accused. In his deposition before the court he has simply stated that on the fateful day when he was at the Dental Care Clinic, at around 9.00 p.m. one boy came into the clinic who has covered his face from a handkerchief. That when he tried to reason with him, 4-5 other persons came and one of them hit on the head due to which he fell down and that one person held him from his hairs and pulled his head downwards and that he was also hot on the face with a sharp thing. He also deposed that they took away Rs.10,000/- from the STATE VS. DHARMENDER & ANR. FIR NO. 553 / 2009 PS BHAJANPURA PAGE NO. 12 / 15 shop and also snatched his gold chain and took away two mobile phones alongwith Rs.500-700 from purse. That they threatened him to keep the head down otherwise they will cause injury to him. That they tried to lock the clinic from outside but failed. That he managed to come out from the clinic and informed the neighbour in the hair saloon shop. He failed to identify the accused persons in the court by stating that his head was facing downwards at the time of incident. Ld. APP for the State sought permission to cross-examine this witness, however, nothing material emerged even in the said re-examination. He denied the suggestion that one of the accused was not having handkerchief and that he saw his face. The law on the aspect of declaring a witness hostile is clear as it says that merely because a witness is declared hostile, does not make his evidence irrelevant in toto. Whatever incriminating evidence, alleged by the witnesses, must be considered by the court, while appreciating the evidence on record. In the case in hand, PW-2 did not mention anything incriminating against the accused Manoj Shrivastava. Thus, his testimony cannot be considered to implicate him qua the offence under section 327/451/506 IPC charged against him in this case. PW-1 and PW-2 are the star witnesses in this case. In the absence of his testimony implicating accused Manoj Shrivastava, testimonies of other remaining prosecution witnesses who have not personally witnessed the incident, even if believed will not remove the doubts, pertaining to the presence and wrongful actions of the accused Manoj Shrivastava in this case. PW-1 is a formal witness who made endorsement on rukka Ex.PW1/A and registered the present FIR Ex.PW1/B. PW-3 Ragender Kumar only recorded the disclosure statement of accused Manoj Ex.PW1/C regarding his involvement in present case upon his arrest alongwith other accused Dharmender (already absconder) in another case pertaining to recovery of illegal country made pistol from him. PW-4 Inspector Satish Rana apprehended both the accused Manoj and STATE VS. DHARMENDER & ANR. FIR NO. 553 / 2009 PS BHAJANPURA PAGE NO. 13 / 15 absconder co-accused Dharmender in the other case FIR No.16/10 pertaining to Arms Act for recovery of country made pistol and live cartridges alongwith a stolen motorcycle from their possession. PW-5 is also a formal witness who recorded the disclosure statement of accused Ex.PW5/A bearing his signatures at point A and that he contacted with the IO ASI Rameshwar Prasad of present FIR and handed over to him the said disclosure statement alongwith copy of FIR No.16/10. PW-6 and PW-7 are medical witnesses who only proved the factum of conduct of MLC Ex.PW6/A and nature of injuries mentioned therein. PW-8 IO Retd. SI Rameshwar Prasad, PW-9 HC Mukesh Kumar and PW-10 ASI Devender are also formal witnesses/police officials associated with the investigation and have not witnessed the crime in question. There was no dearth of independent witnesses at the spot. Admittedly, no effort was made by the investigating officer to join any other public witness who could have thrown light on the issue as to how the incident took place. No independent witness or evidence has come on record which may throw light on the said issue. Mere proof of arrest memo, seizure memo, personal search memo and site plan etc. does not take the case of prosecution ahead by itself. The disclosure statements of accused persons are hit by section 25 of Evidence Act and hence, inadmissible in evidence. No separate discovery of a fact has taken place within the meaning of section 27 Evidence Act pursuant to disclosure statements of accused persons either. Hence, there are too many loose ends in the story of prosecution and the case of prosecution suffers accordingly.
21. In view of the aforesaid analysis, the prosecution has failed to established identity of accused Manoj Shrivastava as perpetrator of the alleged offence. There is also no recovery to connect the accused Manoj Shrivastava to the crime in question. It is cardinal principal of criminal jurisprudence that onus of proving its STATE VS. DHARMENDER & ANR. FIR NO. 553 / 2009 PS BHAJANPURA PAGE NO. 14 / 15 case is squarely upon the prosecution and benefit of doubt, if any, is to be given to the accused.
22. That being so, in absence of any cogent evidence coming on record, there is no option but to grant benefit of doubt to the accused Manoj Shrivastava. Accordingly, the prosecution has failed to prove the charge under section 327/451/506 IPC beyond reasonable doubt against accused Manoj Shrivastava and he is hereby acquitted from the charge of offence under section 327/451/506 IPC as alleged against him.
File be consigned to record room with the direction that the case be revived as and when the other absconding co-accused Dharmender S/o. Ram Karan is produced/appears before the court.
Digitally signed by PANKAJ PANKAJ Date:
RAI RAI 2024.11.08 16:42:31 +0530 ANNOUNCED IN OPEN COURT (PANKAJ RAI) ON 08th NOVEMBER, 2024 JMFC-01, North East District Karkardooma Courts/08.11.2024 This judgment consists of 15 pages and each page of this judgment is Digitally signed by PANKAJ RAI signed by me.
PANKAJ Date:
RAI 2024.11.08
16:42:39
+0530
(PANKAJ RAI)
JMFC-01, North East District
Karkardooma Courts/08.11.2024
STATE VS. DHARMENDER & ANR. FIR NO. 553 / 2009 PS BHAJANPURA PAGE NO. 15 / 15