Delhi District Court
State vs . Sandeep @ Golu on 3 August, 2022
IN THE COURT OF MS. NEETIKA KAPOOR, MM-11, SOUTH WEST
DISTRICT, DWARKA COURTS, DELHI.
FIR Number : 492/21
P.S. : Janakpuri
U/s : 392/411 IPC
STATE VS. SANDEEP @ GOLU
a) Cr. no. of the Case : 58275/21
b) Name & address of the Complainant : Kamlesh Kumar
S/o Jamuna Prasad
R/o RZ 87 Jain Colony
Part 3 Raja Puri Mohan
Garden, Uttam Nagar Delhi
c) Name & address of the accused : Sandeep @ Golu
S/o Sh. Vijay Kumar
H.NO. I-1823, I block Jahangir
Puri Delhi
d) Date of Commission of offence : 17.10.2021
e) Offence complained of : 392/411 IPC
f) Plea of the accused : Pleaded not guilty
g) Final Order : Acquittal
Date of registration of FIR : 17.10.2021
Final arguments heard on : 03.08.2022
Judgment Pronounced on : 03.08.2022
FIR Number : 492/21 State vs. Sandeep @ Golu 1 / 10
JUDGMENT
1. The accused Sandeep @ Golu is facing trial for the commission of offences punishable under Sections 392/411 of the Indian Penal Code, 1860 (hereinafter referred to as IPC) in connection with the case FIR No. 492/21 registered at P.S. Janak Puri.
2. Briefly stated, the case of the prosecution is that on 17.10.2021, at around 07:40 PM, in front of B1-612 Janakpuri New Delhi, accused Sandeep @ Golu came on a scooty bearing no. DL 11G 7917 and robbed one mobile phone (Samsung J7) from one Kamlesh Kumar by using criminal force. Accused was caught red handed at the spot and the stolen mobile phone was seized from his possession. Statement of complainant Kamlesh Kumar Ex. PW-1/A was recorded and thereafter, present FIR was registered u/s 392/411 IPC and IO SI Ravi Narwal was appointed as the Investigating Officer.
3. During investigation, IO inspected the site of the incident and having inspected it, prepared a site plan thereof which is Ex. PW-2/D. IO formally seized scooty bearing no. DL 11G 7917 vide seizure memo Ex. PW-2/C and the stolen mobile phone vide seizure memo Ex. PW2/B and took the photographs of the same. Thereafter, accused was arrested in the present FIR. Statements of the witnesses were recorded and based on the material collected, accused Sandeep @ Golu was found responsible for the commission of offences punishable under Section 392/411 of the IPC. After completion of the investigation, case file was handed over by the IO to SHO of Police Station Janak Puri who after following the codal formalities, prepared and filed the instant challan against the accused.
4. On finding sufficient material on record against accused Sandeep @ Golu, he was summoned before this court and on his appearance, copies of the FIR Number : 492/21 State vs. Sandeep @ Golu 2 / 10 challan and other documents were supplied to him in compliance of Section 207 of Code of Criminal procedure, 1973 (herein referred to as Cr.P.C).
5. On finding a prima-facie case against the accused under Sections 392/411 of I.P.C., charge was put to him, to which he pleaded not guilty and claimed to have a defense to make.
6. Thereafter, prosecution was called upon to adduce its evidence. The prosecution in order to prove its case examined as many as 02 witnesses. PW-1 Kamlesh Kumar is the complainant and PW2 SI Ravi Narwal is the investigating officers of the case.
7. Thereafter, on completion of PE, statement of accused u/s 313 Cr. P.C. was recorded wherein accused denied the case of the prosecution in totality and claimed to have been falsely implicated in the present case. Accused preferred not to lead any evidence in his defense. Thereafter, final arguments were heard.
8. I have heard Ms. Rajesh Kumari, Ld. APP for State and Ms. Santosh Yadav , Ld. Defence Counsel and have gone through the records carefully.
9. It is argued by Ld. APP for the State that the evidence of hostile witness can be read on material points, and it can be used to prove the offence charged against the accused. As such, it is prayed that accused be punished for the said offence.
10. Per contra, Ld. Counsel for accused has argued that State has failed to establish its case beyond reasonable doubt. Ld. Counsel has argued that main witness has turned hostile and despite reading his evidence as a whole, nothing has come on record against the accused. As such, it is prayed that accused be acquitted for the said offence.
FIR Number : 492/21 State vs. Sandeep @ Golu 3 / 10
11. On the basis of evidence on record, the following points arise for determination in the present case:
1. Whether the prosecution has proved its case beyond reasonable doubt that on on 17.10.2021, at around 07:40 PM in front of B1/612 Janakpuri Delhi, accused came on a scooty and robbed the complainant of his mobile phone as alleged?
2. Final order.
12. For the reasons to be recorded hereinafter while discussing the reasons for my findings, my findings on the aforesaid points are as under:
Point No. 1: No Final order: The accused Sandeep @ Golu is acquitted as per the operative part of the judgment.
REASONS FOR FINDINGS POINT NO. 1
13. To bring home the culpability of accused under Section 392/411 IPC, it is pertinent that relevant provisions of law are first read. Section 392 IPC is reproduced herein below:
390. Robbery.--"In all robbery there is either theft or extortion. 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 FIR Number : 492/21 State vs. Sandeep @ Golu 4 / 10 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. When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint".
392. "Punishment for robbery.--Whoever commits robbery shall be punished with rigorous imprison-
ment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sun- rise, the imprisonment may be extended to fourteen years".
411. "Dishonestly receiving stolen property.--Whoever dishonestly receives or retains any stolen property, know- ing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both".
FIR Number : 492/21 State vs. Sandeep @ Golu 5 / 10
14. From bare reading of this provision, the essential ingredients to constitute the offence of theft as robbery are that in order to committing of theft, or in committing or attempting to commit theft, the offender voluntarily causes or attempt to cause to any person death, hurt or wrongful restraint or fear of instant death, hurt or re- straint.
15. It is trite that in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused must be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the case at hand, is to be weighed keeping in view these legal standards.
16. In order to prove its case, the prosecution has examined, PW1 Kamlesh Kuumar who being the complainant and sole eye witness is the star witness of the case.
17. PW-1 Kamlesh Kumar stepped into the witness box and deposed that on 17.10.2021 at around 6-7 PM he was going to his shop from district Centre to Nangli Jalib when accused came on a scooty from behind and hit him on his leg. A quarrel ensued between him and the accused. Public persons gathered at the spot. PCR was called at no.100, who took him and the accused to PS. Witness was made to sign some blank documents and some already filled documents. Witness was not able to read the documents that were signed by him. The next day he was again called and his mobile phone was taken by the police official. Photograph of the mobile phone was taken and he was made to sign some other documents. Witness correctly identified the mobile phone from photographs which are Ex.P1 (colly). Witness was declared FIR Number : 492/21 State vs. Sandeep @ Golu 6 / 10 hostile by Ld. APP for the State and was cross examined.
17.1 In her cross-examination, witness stated that he had never given his statement which is marked PW1/A to the IO. Witness further stated that the incident stated in the complaint had never occurred and he had never given any narration to the police. Witness denied the suggestion that on 17.10.2021 when he was going to his shop he was holding his mobile phone Samsung J7 in his hand and the accused had come from behind on a scooty and snatched the same from his hand. Witness categorically denied the contents of the complaint marked PW1/A. Witness denied the suggestion that accused had committed robbery by snatching the mobile phone the spot. No site plan was prepared at the instance of the witness.
18. PW-1/complainant has turned hostile in the instant case. At this stage, it is pertinent to note that under Indian Law, the evidence of a hostile witness is not discarded completely as the legal maxim "falsus in uno falsus in omnibus" is not applicable. Reliance can be placed on the following observations made by Hon'ble Apex Court in case titled "Rohtash Kumar vs. State of Haryana(2013) 14 SCC 434:
"It is a settled legal proposition that evidence of a prosecution witness cannot be rejected in toto, merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced, or washed off the record altogether. The same can be accepted to the extent that their version is found to be dependable, upon a careful scrutiny thereof."
19. Therefore, it must be seen if the evidence of such hostile witness can be relied in part. The perusal of the testimony of this witness shows FIR Number : 492/21 State vs. Sandeep @ Golu 7 / 10 inconsistencies and contradiction in her version. PW1 in his testimony has failed to support the case of the prosecution and has narrated clearly that the incident alleged in the FIR had never taken place and accused Sandeep @ Golu had never robbed him of his mobile phone. The witness has merely stated that on 17.10.2021 only a quarrel had ensued between him and the accused as the latter had hit the complainant on his leg with his scooty but failed to depose anything about the involvement of accused in the alleged incident of robbery. Thus, even if the evidence of the hostile witness is considered partly, there is nothing to implicate the accused as it is clear that an inference of use of criminal force or assault by the accused cannot be drawn from a simple testimony of the PW1. Specific evidence has to be led by the prosecution in order to prove the same.
20. In order to corroborate the testimony of PW-1, the prosecution has examined PW- 2 SI Ravi Narwal who is the investigating officer of the case. PW-2 SI Ravi Narwal stepped into the witness box and deposed that on 17.10.2021, he was posted at PS Janak puri and had received information vide DD no. 67 A regarding alleged incident and reached the spot along with Ct. Samsher. He met the complainant along with ASI Dharam Singh who had apprehended the accused and who informed the IO that accused had committed robbery of mobile phone of complainant. Complainant also had confirmed the allegations against the accused. Rukka Ex. PW- 2/A was prepared and thereafter, present FIR was registered. The stolen mobile phone of the complainant was seized vide seizure memo Ex. PW-2/B. Site plan Ex. PW-2/D was prepared at the instance of complainant. Accused was arrested vide arrest memo Ex. PW-2/E and his personal search was conducted vide memo Ex.PW2/F. Disclosure statement of the accused was recorded. Witness correctly identified the scooty from the photographs on record.
21. However, perusal of the testimony of PW-2 reveals that he was FIR Number : 492/21 State vs. Sandeep @ Golu 8 / 10 not an eye witness to the accident. The witness had only investigated the matter after registration of FIR but could not explain the act of robbery by the accused. Therefore, even the testimony of PW2 is not sufficient to prove the guilt of the accused in the present case beyond reasonable doubt. Moreover, site plan Ex. PW3/B prepared by the IO is not sufficient to prove the act of robbery on the part of the accused. While it shows the location of the accident which is undisputed, it could not be inferred that the incident had occurred as accused had robbed the complainant of his mobile phone.
22. There is no other witness to establish the guilt of the accused. As such, the prosecution has failed to establish the act of robbery on the part of the accused in the present case and, therefore, failed to prove beyond reasonable doubt the fact that accused Sandeep @ Golu had snatched the mobile phone of the complainant by using criminal force or assault. Testimony of eyewitness does not completely support the prosecution story and testimonies of the rest of the witnesses are not sufficient enough to prove the guilt of the accused. Hence, benefit of doubt must be given to the accused. Thus, this point is answered in the negative and is decided against the prosecution.
FINAL ORDER:
23. Accordingly, in view of the above discussion, since the prosecution could not prove the guilt of the accused for commission of offences punishable under sections 392/411 of IPC, beyond reasonable doubt, accused Sandeep @ Golu is acquitted of the offences punishable under Sections 392/411 of IPC.
24. Personal bonds/surety bonds stands cancelled. Endorsement, if any is also cancelled. Sureties stand discharged. Superdarinama, if any stands cancelled. Original documents, if any be returned to the rightful claimant against proper receipt as per rules.
FIR Number : 492/21 State vs. Sandeep @ Golu 9 / 10
25. The accused has already furnished personal and surety bonds as per the mandate of section 437-A of the Code of Criminal Procedure, wherein he has undertaken that he shall put in his appearance before the appellate court within the prescribed period in case an appeal is filed and admitted for hearing. File after due completion be consigned to the Record Room.
Announced and signed in the open court on 3rd August, 2022.
NEETIKA Digitally signed
by NEETIKA
KAPOOR KAPOOR
(Neetika Kapoor)
MM-11/DWARKA/DELHI
03.08.2022
It is certified that this judgment contains 10 pages, and each page bears my signature.
FIR Number : 492/21 State vs. Sandeep @ Golu 10 / 10