Delhi District Court
State vs . Anwar Ali @ Raj And Ors. on 26 April, 2023
IN THE COURT OF MS. APOORVA RANA, M.M-10,
DWARKA COURT (SOUTH WEST), NEW DELHI
CNR No. DLSW02-000934-2015
Cr. Case 422968/2016
STATE Vs. ANWAR ALI @ RAJ AND ORS.
FIR No. 554/2014
P.S Kapashera
26.04.2023
JUDGMENT
Case No. : 422968/2016
Date of commission of offence : 30.11.2014
Date of institution of the case : 08.04.2015
Name of the complainant : Sh. Sunil
Vishavkarma
Name of accused and address : 1. Anwar Ali @ Raj S/o Sh. Asgar Ali R/o Village Mudaheda, Post & PS Khurja, District Bulandshahar, UP.
2. Vikram Singh Chauhan S/o Sh. Deep Ram R/o House of Mukhtiyar Singh, Gali No. 7, VPO Dundahera, Gurgaon, Haryana.
State Vs. Anwar Ali @ Raj And Ors. Page Nos.1 / 263. Lalit Kumar S/o Sh. Vijender R/o H. No. 589-590, Gali No. 16, Prashant Enclave, Bapraula, New Delhi.
4. Mohd. Raju S/o Md. Sarfaraz @ Munna R/o H. No. 622, Gali No. 13, Prashant Enclave, Bapraula, New Delhi.
Offence complained of or proved : U/s 392/482/411/34 IPC.
Plea of the accused : Pleaded not guilty
Final order : Accused No. 1 -
Acquitted
Accused No. 2 -
Acquitted
Accused No. 3 -
Acquitted
Accused No. 4 -
Acquitted
Date of judgment : 26.04.2023
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. The present case pertains to prosecution of accused persons namely, Mohd. Raju, Vikram, Anwar Ali and Lalit Kumar (here-in-after referred to as the accused no. 1, 2, 3 and 4 State Vs. Anwar Ali @ Raj And Ors. Page Nos.2 / 26 respectively), pursuant to charge sheet filed qua them under Section 392/482/411/34 of the Indian Penal Code, 1860 (hereinafter IPC for sake of brevity) subsequent to the investigation carried out at P.S: Kapashera, in FIR no. 554/14.
2. It is the case of the prosecution that on 30.11.2014, at about 10:00 p.m, at Shankar Chowk, Gurgaon Samalkha, Peer Baba, New Delhi, all the accused persons, in furtherance of their common intention, committed robbery on the highway between sunrise and sunset qua the complainant Sunil Vishwkarma by snatching his bag, purse and mobile phone and thereby committed an offence punishable u/s 392/34 IPC. Further, while committing the said robbery, all accused persons, in furtherance of their common intention, used a vehicle bearing no. UP-7751 (original registration no. UP-16-CT-1991) which was a fake number plate and thereby committed an offence u/s 482/34 IPC. Additionally, it has also been alleged that on 24.12.2014, at unknown time at H. No. 85, Gali No. 1, House of Mahavir Singh Yadav, Village Dhundahera, Gurgaon, a stolen mobile phone was recovered at the instance of accused Anwar Ali which he had dishonestly retained or received knowing or having reason to believe the same to be stolen and thereby committed an offence u/s 411 IPC.
3. Complete set of charge sheet and other documents were supplied to the accused. Charge for offence punishable u/s 392/482/411/34 IPC was framed qua the accused persons, to which all accused persons pleaded not guilty and claimed trial.
State Vs. Anwar Ali @ Raj And Ors. Page Nos.3 / 26Further, the accused persons vide their statement u/s 294 Cr.P.C, had admitted the TIP proceedings dated 19.12.14 and 22.12.2014, Ex. C1 to Ex. C4.
MATERIAL EVIDENCE IN BRIEF:
4. The prosecution, in support of the present case has examined nine witnesses in total.
5. PW-1 was HC Devi Ram, who deposed that on 01.12.2014, at about 8.00 AM, Ct. Ajeet brought one rukka for registration of FIR which was sent by SI Paramjeet. Thereafter, the said PW registered the FIR in the present case. Through him, FIR was exhibited as Ex. PW1/A, endorsement on original rukka was exhibited as Ex. PW1/B and certificate u/s 65B of IEA was exhibited as Ex. PW1/C.
6. PW-2 was Sunil Vishvakarma, i.e., the complainant himself, who deposed that he was working in Ages Ltd. Udhyog Vihar-IV, Gurgaon as Senior Executive. That on 30.11.2014, at 10.00 PM, after completing his duties, he left his office towards his house at Basant Village. When he reached at Shankar Chowk and waiting for bus, a cab came near him in which four persons were seated and asked him as to where he wanted to go. Thereafter, the said PW told them that he wanted to go to Mahipalpur and then he boarded the cab. After sometime the accused persons asked him about his details. He told the same to them. After crossing the Gurgaon toll near Rajoukri Flyover, State Vs. Anwar Ali @ Raj And Ors. Page Nos.4 / 26 they asked him for the fare of the said taxi. When he gave the relevant fare, they asked him for more fare as they told him it was a big car and fare for that car was more. When he tried to give them the more money, they snatched his bag containing one mobile charger, watch and earphone. After that they took his wallet and after taking Rs. 100/- from the same, they returned the same to him. Thereafter, they enquired from him about his mobile, which he denied having. Thereafter, they snatched his mobile phone and after taking out both the SIMs from the said mobile, they handed over the said SIMs to him and took the mobile with them. The accused persons then took a left turn and then from the Dwarka Link Road, near a small red light, they again took a left turn and then from the Pir Baba Ka Thana, they took a right turn and took the said PW to a secluded placed. They also took away the shoes of the said PW which he was wearing that day. They asked him not to see towards them and asked him to walk opposite from them. After travelling some distance, they took a U-turn. Thereafter, the said PW saw the number of the said car as UP-1991 but he could not notice the entire number of the said car as they were driving the car very speedily and due to the same, there was dust in the air and vision was not clear enough to see the number properly. That, the said PW saw two public persons passing on their motorcycle, whom he stopped and asked for their mobile phone, through which he thereafter made a call at 100 number and also called his father and a friend. That, his father and friend enquired from him about the incident in question and the place of incident. The said PW narrated the same to them and took them to the place of incident.State Vs. Anwar Ali @ Raj And Ors. Page Nos.5 / 26
Subsequently, they took the said PW to the police station where his statement was recorded by the police. Thereafter, the said PW deposed with respect to the investigation carried out by the IO in the present case. Through him, his statement was exhibited as Ex. PW2/A, identification memos of two accused persons out of four accused persons was exhibited as Ex. PW2/B and Ex. PW2/C, case property i.e Samsung mobile phone was exhibited as Ex. P1, shoes were exhibited as Ex. P2 and slippers were exhibited as Ex. P3.
7. PW-3 was Ct. Dhan Singh, who deposed that on 17.12.2014, he joined the investigation of the present case. He further deposed that on 24.12.2014, he alongwith SI Paramjeet, complainant and accused Vikram and Anwar Ali went to Village Dhundahera, Gurgaon where Vikram lead them to the house of Mahabir Yadav and got recovered one pair of shoes. Thereafter, he further deposed with respect to the investigation carried out by the IO in the present matter. Through him, disclosure statements of accused persons were exhibited as Ex. PW3/A, Ex. PW3/B, Ex. PW3/C and Ex. PW3/D respectively, arrest memos and personal search memos of accused persons were exhibited as Ex. PW3/E, Ex. PW3/F, Ex. PW3/G, Ex. PW3/H, Ex. PW3/I, Ex. PW3/J, Ex. PW3/K and Ex. PW3/L respectively, seizure memo of shoes was exhibited as Ex. PW3/M and seizure memo of mobile phone was exhibited as Ex. PW3/N.
8. PW-4 was Ct. Ajit Singh, who deposed that on 30.11.2014, at about 10.30 to 11.00 PM, he alongwith IO SI State Vs. Anwar Ali @ Raj And Ors. Page Nos.6 / 26 Param Jeet Singh went to the spot i.e. Near Shiv Mandir, Samalkha Village, where the complainant Sunil met them. Thereafter, the said PW deposed with respect to the investigation carried out by IO in the present matter. Through him, seizure memo of chappal was exhibited as Ex. PW4/A.
9. PW-5 was Sh. Wasiraja, who deposed that he was the registered owner of the vehicle no. UP-16-CT-1991. His vehicle was driven by his relative Anwar Ali. He further deposed that on 13.11.2014 to 01.12.2014, his vehicle was in possession of Anwar Ali. Through him, vehicle in question was exhibited as Ex. P1.
10. PW-6 was SI Yogener, who deposed that on 16.12.2014, he had arrested accused Vikram Chauhan, Anwar Ali, Mohd. Raju and Lali Kumar in FIR No. 552/14. That, they had disclosed regarding their involvement in the present case. The said PW recorded their disclosure statements and seized the recovered vehicle involved in the case along with the fake number plate. He also seized the metal toy revolver which was recovered from accused Anwar and handed over the documents to the IO of the present case. Through him, arrest memos of accused persons were exhibited as Ex. PW6/A to Ex. PW6/D respectively, disclosure statements of accused persons were exhibited as Ex. PW6/E to Ex. PW6/H, seizure memo of fake number plate was exhibited as Ex. PW6/I, seizure memo of Xylo car was exhibited as Ex. PW6/J and seizure memo of toy revolver was exhibited as Ex. PW6/K, seized case property i.e. State Vs. Anwar Ali @ Raj And Ors. Page Nos.7 / 26 two number plates was exhibited as Ex. P2 and toy revolver was exhibited as Ex. P3.
11. PW-7 was HC Satbir Singh, who deposed that on 30.11.2014, at about 10.48 PM, he received information from Gama 54 wireless operator regarding robbery near Shiv Mandir. Thereafter, he mentioned the same in roznamcha register A as DD no. 30 A. Through him, true copy of roznamcha register A was exhibited as Ex. PW7/A (OSR).
12. PW-8 was Sh. Vikas, who deposed that on 22.06.2022, he had brought the summoned record i.e. 552/14. Through him, the record was exhibited as Ex. PW8/A(Colly) (OSR).
13. PW-9 was Inspector Parmajeet Singh, who was the IO in the present case and who deposed that on 30.11.2014, he was on emergency duty in the intervening night of 30.11.2014 and 01.12.2014. During his duty, he received information around 10.45 PM vide DD no. 30A regarding snatching of mobile and cash of complainant Sunil Vishwakarma. Upon receipt of the same, he alongwith Ct. Ajeet reached at the place of occurrence i.e. Telephone Exchange Road, Samalkha near Peer Baba where complainant Sunil Vishwakarma met them and reported about the incident that had occurred with him. Thereafter, the said PW deposed with respect to the investigation carried out by him in the present case after he reached at the spot. Through him, site plan was exhibited as Ex. PW9/A, TIP proceedings of accused State Vs. Anwar Ali @ Raj And Ors. Page Nos.8 / 26 persons were exhibited as Ex. PW9/B, Ex. PW9/C, Ex. PW9/D and Ex. PW9/E respectively and copy of invoice was marked as Mark A.
14. On account of admission of accused u/s 294 Cr.P.C, PW at serial no. 5, Sh. Anurag Thakur, Ld. MM, as per list of prosecution witnesses was dropped from the list of prosecution witnesses and the formal proof of the documents sought to be proved by him was dispensed with.
15. No other PW was left to be examined, hence, P.E was closed.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
16. Statement of accused persons u/s 313 Cr.P.C. read with section 281 Cr.P.C was recorded separately in which all the incriminating circumstances appearing in evidence were put to them. The accused persons controverted and denied the allegations levelled against them and stated that they have been falsely implicated in the case. Accused persons further opted to not lead evidence in their defence, hence, D.E was closed.
FINAL ARGUMENTS:
17. Ld. APP for the State has argued that prosecution witnesses have supported the prosecution case and their testimony has remained unrebutted. It has been further argued State Vs. Anwar Ali @ Raj And Ors. Page Nos.9 / 26 that on the combined reading of the testimony of all the prosecution witnesses, offences alleged against the accused persons have been proved beyond doubt.
18. Per contra, Ld. Counsel for accused persons has stated that there is no legally sustainable evidence against the accused persons and that they have been falsely implicated in the case and recovery of case property has been planted upon them. Arguing further, Ld. Counsel has submitted that due to the lacunae and incoherency in the story of the prosecution, accused persons be given the benefit of doubt and are therefore, entitled to be acquitted.
APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
19. Arguments adduced by Ld. APP for State and accused persons have been heard. The evidence and documents on record have been carefully perused.
20. I have bestowed my thoughtful consideration to the rival submissions made by both the parties. Accused persons Mohd. Raju, Vikram, Anwar Ali and Lalit Kumar have been indicted for commission of offence u/s 392/482/411/34 IPC. Section 392 IPC provides punishment for committing the offence of robbery. Further, offence of robbery as relevant for the present case is defined u/s 390 IPC as follows -
State Vs. Anwar Ali @ Raj And Ors. Page Nos.10 / 26 "When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint."
Moving on, section 482 IPC provides punishment for offence of using false property mark and holds the culprit liable unless he proves that he had acted without intent to defraud. Furthermore, the section 411 IPC provides punishment for dishonestly receiving / retaining stolen property, knowing or having reason to believe the same to be stolen property. Finally, section 34 IPC lays down the liability for criminal acts of several persons, done in furtherance of common intention of all. This section imputes liability on every such person, for a particular a criminal act in the same manner, as if it were done by him alone.
21. It is trite law that the burden always lies upon the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence and that the law does not permit the Court to punish the accused on the basis of moral conviction or on account of suspicion alone. Also, it is well settled that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles him to acquittal
22. In order to prove the alleged offence u/s 392/34 IPC against all the accused persons, it was required to be proved that the accused persons had committed robbery qua the complainant, State Vs. Anwar Ali @ Raj And Ors. Page Nos.11 / 26 i.e., while committing theft, they had voluntarily caused or attempted to cause to the complainant death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. Now, the sole person who could have deposed with respect to the alleged acts of the accused persons was the star witness/complainant himself, who appeared as PW2 during trial in the matter. However, there are various contradictions, inconsistencies and improvements in his version that render his case/the prosecution case dubious, as discussed hereinafter.
23. Firstly, there is discrepancy with respect to the fact as to when and under what circumstances the incident in question had occurred. During his testimony, PW2 deposed that on the relevant day, when he was seated in the cab of the accused persons, after crossing Gurgaon toll, the accused persons asked him for the fare of the taxi and that he had given the relevant fare of the car. However the accused persons asked him for more fare as the car was a big one and consequently, the fare of the car was higher. The complainant then deposed that when he tried to give them more money, they snatched away his bag containing his mobile charger, watch and earphones. Now, this version given by the complainant during his testimony is at vast variance with his initial complaint Ex.PW2/A given by him to the police after occurrence of incident in question. Depicting the circumstances which unfolded immediately prior to the occurrence of the incident, the complainant had in his complaint Ex.PW2/A stated that when driver of the car took a left turn after the petrol pump on the service lane, complainant had raised objection towards the State Vs. Anwar Ali @ Raj And Ors. Page Nos.12 / 26 same, after which the driver had taken out an iron chain and threatened the complainant to keep his mouth shut. He had further stated that after travelling some distance, the driver again took a left turn and that the person sitting in the middle on the back seat of the car came towards the left side car window and took the complainant in the middle. He further added that the person sitting on the backside of the car towards the right window gagged him and snatched his bag and that the person sitting on the left window side took his purse and gave it to the person sitting next to the driver seat in front. Now, this description of the circumstances under which the incident in question is reported to have occurred as per PW2 in his testimony is significantly different from the version given by him in his complaint Ex.PW2/A. Not only this, during trial, PW2 deposed that after taking away his wallet, the accused persons took out Rs. 100/- from it and returned the same to the complainant. However, in his complaint Ex. PW2/A, the complainant had stated that the accused persons had removed all the money from his purse and had handed over an emptied purse back to the complainant. In fact, in the said complaint, the complainant also deposed that the driver of the car had initially taken out an iron chain to threaten the complainant and had later pointed out a pistol like weapon at him and threatened him to keep mum, which fact, however, did not find light in the testimony of the complainant during trial.
24. Furthermore, during his examination before the court, PW2 also added that the accused persons had even taken State Vs. Anwar Ali @ Raj And Ors. Page Nos.13 / 26 away his shoes that he was wearing and later also deposed that they had, in return given green slippers/chappals to the complainant. The said slippers/chappals were seized by the police vide seizure memo Ex.PW4/A. Interestingly, the factum of taking away of shoes of the complainant by the accused persons neither surfaced in the initial complaint of the complainant Ex.PW2/A nor did the same bear mention in the telephonic complaint given by the complainant to the police which was received vide DD number 30A on 30.11.2014, with respect to the incident in question. It was only in his supplementary statement recorded on 01.12.2014, that the said fact was apparently mentioned by the complainant. The omission of factum of taking away of shoes of the complainant and their exchange with slippers, in the initial complaint Ex. PW2/A is a material one in as much as the same constituted a significant aspect of the incident and was a fact such, which in ordinary course of things should not have been missed by the complainant in his complaint Ex.PW2/A, based on which, tehrir was prepared by the IO. Moreover, during his examination, complainant deposed that green chappals were given to him by the accused person, who had taken his shoes. However, when the case property Ex. P1 was produced before the Court during the trial, the relevant pullanda, upon opening, was found to be containing a pair of black slippers, as reflected through the testimony of PW9 Inspector Paramjeet Singh. In addition to the above, it is also fundamental to note that the complainant deposed for the first time during trial that he had called at 100 number from the mobile number of a public person who was passing by on a State Vs. Anwar Ali @ Raj And Ors. Page Nos.14 / 26 motorcycle after the accused persons had left him stranded at a secluded place. This fact did not surface in the initial complaint Ex. PW2/A given to the police by the complainant.
25. The aforesaid omissions/inconsistencies in the version of the complainant are not of feeble in magnitude, but are rather material in nature, rendering his contentions incredulous as no explanation in respect thereof is evident through testimony of prosecution witnesses. At this juncture, it would be imperative to advert to the ruling of the Hon'ble Apex Court in case titled as Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State Of Maharashtra (2010 SC), wherein it was observed as follows:
"15. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide : State of Rajasthan v. Rajendra Singh, (2009) 11 SCC 106).
16. The discrepancies in the evidence of eye- witnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that prosecution proved its case beyond reasonable doubt. (Vide: Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334).
17. In case, the complainant in the FIR or the witness in his statement under section 161 Cr.P.C., has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded. (Vide: State Represented by Inspector of Police, Tamil Nadu v. Sait @ Krishnakumar, (2008) 15 SCC
440)."
State Vs. Anwar Ali @ Raj And Ors. Page Nos.15 / 26
26. Moving on, even if the aforesaid version of PW2 given by him during trial is to be believed as such for a moment, the same is still fraught with multiple inconsistencies when compared with the testimony of other PWs, thereby rendering his version shrouded with suspicion. Interestingly, the IO did not interrogate as to from whose mobile number the PCR call regarding the incident in question was made. The same gains significance in light of the fact that though, apparently the complainant had himself made the PCR call, but the same was made from the mobile number of a passerby who had met the complainant near the spot of the incident, after the accused persons had dropped the complainant off at a secluded place. Neither has the complainant disclosed the name of the said public person nor did the IO conduct enquiry with respect to the same. During his cross-examination, IO deposed that he did not recall as to from whose mobile number PCR call was made, further adding that, to his recollection, he had enquired from the complainant about the same. Thus, the identity of the public person from whose mobile phone PCR call was made, remained obscure. Moving on, it is the version of the complainant that he had also called his father and one friend from the mobile phone of the aforesaid public person after the occurrence of the incident in question. The complainant further added that his father and his friend enquired from him about the incident and also asked about the place of incident after which the complainant narrated the same to them and took them to the place of incident. It was after this, that they took the complainant to PS Kapashera, where his statement Ex. PW2/A was recorded by the police. However, PW9 State Vs. Anwar Ali @ Raj And Ors. Page Nos.16 / 26 / IO deposed that upon receipt of DD number 30, he along with Ct. Ajit had reached the place of occurrence where the complainant met him and reported about the incident that occurred with him. The IO further deposed that he had recorded the statement of the complainant in this regard, prepared the tehrir and had handed over the same to Ct. Ajit for registration of FIR, after which Ct. Ajit went to the police station for registration of FIR. Moreover, during his cross examination, the IO even deposed that after enquiry, the complainant was discharged at the spot itself. This clearly implies that the statement of the complainant was recorded by the IO at the spot itself, which version is in complete contrast with that of the complainant. Not only this, testimony of PW9/IO is absolutely silent on the aspect of the presence of the father and friend of the complainant along with the complainant at the spot. In fact, contrary to the version of the complainant, IO explicitly deposed during his cross- examination that no relative of the complainant had met him at the spot. Even Ct. Ajit, appearing as PW4, deposed during his cross-examination that no other public person was available at that time at the spot.
27. In view of the above facts and circumstances, the possibility that the complainant has falsely implicated the accused for the alleged offence, cannot be ruled out. As noted above, material contradictions and inconsistencies have crept in the testimonies of the prime prosecution witness / sole eye witness namely Sunil Vishwakarma. It has been observed by the State Vs. Anwar Ali @ Raj And Ors. Page Nos.17 / 26 Hon'ble Supreme Court in Syed Ibrahim v. State of A.P. [(2006) 10 SCC 601] that, "normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so."
Specific findings with respect to offence u/s 482 IPC.
28. Pertinently, all the four accused persons have also been indicted for offence under section 482/34 IPC on the ground that while committing the robbery in question, all the accused persons had used a vehicle bearing number UP-7751, which was a fake number plate in place of the original registration number UP-16-CT-1991. In order to prove the same, the person whose testimony was imperative was the complainant himself as he was the only eye-witness to the alleged incident who had seen the accused persons travelling in the car in question. However, in this regard as well, there is incongruity in the version of the complainant in as much as in his complaint Ex.PW2/A, he had stated that the accused persons were travelling in a white coloured Mahindra Xylo car, with a yellow number plate, having registration number UP-7751, further adding that he could only note so much of the number of the aforesaid car. But, when he appeared as PW2 during trial, the complainant explicitly deposed that he had seen the number on the said car which was UP-1991 State Vs. Anwar Ali @ Raj And Ors. Page Nos.18 / 26 and did not even once mention that the number of the said car was anything else, let alone it being UP-7751. In fact, his version regarding the registration number plate of the car in question being UP-1991 remained the same during his examination-in- chief dated 28.05.2015 as well as in his further examination-in- chief dated 26.07.2016. Such deposition of complainant given by him during trial clearly hints towards the fact that at the time of the alleged incident, the car in question had the number plate bearing registration number UP-1991, i.e., one with the actual and true registration number, and not UP-7751, as claimed by the prosecution. As a necessary corollary, it can thus be stated that at the time of the incident in question, the car in question was not being driven with a fake number plate but was in fact being driven with its actual number plate in place. Consequently, offence u/s 482 IPC cannot be said to have been made out against the accused persons.
Findings with respect to offence u/s 411 IPC.
29. At the very outset, the famous judgment of the Hon'ble Supreme Court given in case titled as Trimbak v. State of Madhya Pradesh, AIR 1954 SC 39, may be adverted to, wherein, following observations were made as regards the ingredients constituting offence u/s 411 IPC:
"It is the duty of the prosecution in order to bring home the guilt of a person under Section 411 I.P.C. to prove, (1) that the stolen property was in the possession of the accused, State Vs. Anwar Ali @ Raj And Ors. Page Nos.19 / 26 (2) that some person other than the accused had possession of the property before the accused got possession of it, and (3) that the accused had knowledge that the property was stolen property."
Notably, in the present case, recovery of robbed property has been effected from accused Anwar Ali and Vikram only. While the robbed mobile phone was allegedly recovered at the instance of accused Anwar Ali, the robbed shoes were allegedly recovered from the possession of accused Vikram. Perusal of seizure memo Ex. PW3/M qua recovery of shoes from accused Vikram shows that the same were recovered from the house of the said accused, where they were found kept as such, in open space, in one corner of a room in the house. The same were not found kept at any hidden place in the house and were thus, accessible to all and sundry, thus making it difficult to hold positively that the accused was in possession of the said shoes. The fact of recovery by the accused is compatible with the circumstance of somebody else having placed the articles there and of the accused somehow acquiring knowledge about their whereabouts and that being so, the fact of discovery cannot be regarded as conclusive proof that the accused was in possession of these articles [reliance placed on Trimbak v. State of Madhya Pradesh, AIR 1954 SC 39]. Thus, offence u/s 411 IPC cannot be said to have been made out qua accused Vikram.
30. As regards accused Mohd. Anwar Ali, even if it is assumed for a moment that the property in question was robbed from the complainant during the alleged incident, it was pertinent State Vs. Anwar Ali @ Raj And Ors. Page Nos.20 / 26 for the prosecution to prove the mens rea on part of the accused, i.e., to prove that the accused had received or retained the aforesaid stolen property having the knowledge or reason to believe the same to be stolen property. Now, the prosecution has relied upon the disclosure statements Ex. PW3/A to Ex. PW3/D given by the accused persons in this regard wherein, the accused persons allegedly disclosed that they had robbed the complainant of his mobile, purse and shoes and the mobile phones had been retained by accused Anwar Ali, while the shoes had been retained by accused Vikram. However, in the said disclosure statements, no details of the said mobile phone have been recorded, thus rendering this alleged act of robbery of mobile phone by the accused persons vague and uncertain. Though, the complainant was present at the time when recovery of phone was effected from the accused, it is difficult to comprehend as to how the complainant had identified the same as his mobile phone only, as no specific identity mark was reportedly present on the said phone, as would render its instant identification upon sight. More importantly, it is a settled legal proposition that disclosure statement of accused is inadmissible in evidence in light of sections 25 and 26 of the Indian Evidence Act, 1872 (hereinafter IEA). Resultantly, this confession made by the accused in his disclosure statement cannot be read in evidence except for the purpose of discovery effected pursuant to the said statement, as contemplated u/s 27 of the IEA. Now, thought, recovery has been effected from the accused in pursuance of the disclosure statement, however, that per se, does not establish the fact that the accused knew the same to be stolen property. Thus, the State Vs. Anwar Ali @ Raj And Ors. Page Nos.21 / 26 disclosure statement of the accused does not come to the aid of the prosecution on this aspect.
31. Moreover, it is not the case of the prosecution that the case property/mobile phone was so unique, that its possession per se would entail raising of suspicion upon the accused. Rather, a mobile is a property subject to easy transfer from one hand to another, and since, recovery of the same was not effected from the accused soon after the incident, but was done after about 24 days from the date of alleged offence, there arises no opportunity for this Court to invoke the presumption under section 114 (a) of IEA, as well. A period of one month clearly cannot be said to fall within the ambit of the term "soon after the theft" as contemplated u/s 114 (a) of the IEA.
32. Furthermore, to drive home the guilt of the accused for offence u/s 411 of IPC, prosecution was also required to prove that some person other than the accused had possession of the stolen property before the accused got possession of it. As noted earlier, owing to various discrepancies in the case of the prosecution, the fact that accused persons had committed the alleged robbery is clouded with suspicion and the prosecution has not been able to fortify its version as regards the accused himself being the thief of the recovered property. Further, even presumption u/s 114 (a) could not be raised against the accused in this regard. At the risk of repetition, it may be noted that there is not even a whisper by the prosecution as regards any person from whom the accused had received the stolen property in question.
State Vs. Anwar Ali @ Raj And Ors. Page Nos.22 / 26 In such backdrop of facts, mere recovery of stolen/robbed property from the accused, without having proved the previous possession of the same, cannot suffice to attract the provisions of offence u/s 411 IPC against the accused.
33. The non-joining of any independent / public witness: It is evident from the record that except the complainant, no public witness to the recovery of case property has been either cited in the list of prosecution witnesses or has been examined by the prosecution. As observed earlier, various incongruities have surfaced in the version of the complainant, rendering his testimony unworthy of credit. Other than this, no serious effort for joining public witnesses appears to have been made. These facts are squarely covered by the ruling of the Hon'ble High Court of Delhi in the case titled as, Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC), wherein it was observed as under:
".........18. It is repeatedly laid down by this Court 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 evidence 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."
State Vs. Anwar Ali @ Raj And Ors. Page Nos.23 / 26
34. Further, in a case law reported as Roop Chand v. The State of Haryana, 1999 (1) C.L.R. 69, Hon'ble Punjab & Haryana High Court held as under:
"........The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner.
4. It is well settled principle of the law that the Investigating agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the IO must have proceeded against them under the relevant provision of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful."
35. This Court is conscious of the legal position that non-joining of independent witnesses cannot be the sole ground to discard or doubt the prosecution case, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696.
State Vs. Anwar Ali @ Raj And Ors. Page Nos.24 / 26 However, evidence in every case is to be sifted through in light of the varied facts and circumstances of each individual case. As observed above, the testimony of the police witnesses in the present case is not worthy of credit. In such a situation, evidence of an independent witness would have rendered the much needed corroborative value, to the otherwise uncompelling case of the prosecution, as discussed above.
36. Furthermore, it has not been stated by the IO as to whom the seal of PL was handed over by him after sealing of casing property upon seizure. Evidently, the seal was not handed over to any independent witness. There is nothing on record to suggest that the IO had made efforts to hand over the seal to any independent witness. In such a factual backdrop, since the seal remained with the IO himself, the possibility of tampering with the case property or planting of the same cannot be ruled out.
37. The aforementioned lacunae in the story of the prosecution render the version of the prosecution doubtful, leading to the irresistible conclusion that the burden of proving the guilt of the accused persons beyond reasonable doubt has not been discharged by the complainant. There is no gainsaying that if two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede to the existence of a reasonable doubt. Thus, this Court is of the opinion that the prosecution has failed to bring on record any cogent evidence in order to prove the commission of and guilt of the accused persons for offence u/s 392/482/411/34 IPC beyond State Vs. Anwar Ali @ Raj And Ors. Page Nos.25 / 26 reasonable doubt, thus, entitling the accused persons to benefit of doubt and acquittal.
38. Accordingly, this Court hereby accords the benefit of doubt to the accused persons for offence u/s 392/482/411/34 IPC and holds all the accused persons not guilty of commission of the said offence. Accused Anwar Ali @ Raj, Mohd. Raju, Vikram Singh and Lalit Kumar are thus, acquitted of the offence u/s 392/482/411/34 IPC.
39. Copy of this judgment be given free of cost to the accused persons.
Announced in the open Court on 26.04.2023, in presence of all accused persons and Ld. Counsel for accused.
(APOORVA RANA) M.M-10/Dwarka Courts/26.04.2023 It is certified that this judgment contains 26 pages, all signed by the undersigned.
(APOORVA RANA) M.M-10/Dwarka Courts/26.04.2023 State Vs. Anwar Ali @ Raj And Ors. Page Nos.26 / 26