Delhi District Court
State vs . Honey & Ors. on 26 April, 2018
IN THE COURT OF SH. ASHU GARG
CHIEF METROPOLITAN MAGISTRATE (CENTRAL)
TIS HAZARI COURTS, DELHI
FIR No.: 246/2017
PS: Desh Bandhu Gupta Road
U/s 392/411/34/120-B IPC
State Vs. Honey & Ors.
(a) S. No. of the case : 1182/2018
(b) Name of complainant : Sh. Suhail
S/o Sh. Salim
R/o H. No. 11255,
Ground Floor, Doriwalan,
Karol Bagh, Delhi.
(c) Date of commission of offence : 01.12.2017
(d) Name of the accused : 1. Honey
S/o Sh. Kuldeep Singh
R/o H. No. 10405/1,
Bagichi Allaudin, Motia
Khan, Paharganj, Delhi.
2. Harsh
S/o Sh. Panna Lal
R/o H. No. C/400, Gali
No. 13, Shiddhart Basti,
Multani Dhanda, Pahar
Ganj, Delhi.
3. Rahul Singh
S/o Sh. Kishan Lal
R/o H. No. C/394,
Chinyot Basti, Gali No.
12, Ram Nagar,
Paharganj, Delhi.
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(e) Offence complained of : U/s.392/411/34/120B IPC
(f) Plea of accused : Pleaded not guilty
(g) Final arguments heard on : 26.04.2018
(h) Final Order : Acquitted.
(i) Date of such order : 26.04.2018
BRIEF STATEMENT OF REASONS FOR DECISION:
1.Accused Honey, Harsh and Rahul Singh had been charge- sheeted with the allegations that in furtherance of a conspiracy to commit the offence of robbery, on 01.12.2017, at about 11.00 pm, at T- point of East Park Road and Filmistan, Delhi, accused Honey and Harsh robbed the complainant Suhail by committing theft of his mobile phone make Lenovo K-3 Note, while using the motorcycle number DL-12SK-1996 of accused Rahul Singh and in order to commit the theft and while committing the said theft, they voluntarily caused or attempted to cause hurt or fear of instant hurt or wrongful restraint.
2. As per the case of the prosecution, on 01.12.2017, the complainant Suhail and his friend Faizal were going from East Park Road towards Filmistan to have food, at about 11.00 pm. The complainant was holding his mobile phone make Lenovo K3 Note in his right hand. At that time, one motorcycle make Apache RTR came FIR No. 246/2017 P.S. Desh Bandhu Gupta Road Page No. 2 of 8 from behind and was stopped in front of the victims. The pillion rider snatched the phone from the hand of the complainant and pushed him as a result of which he fell on the road. While the two assailants were fleeing away, the complainant and his friend raised alarm and chased the motorcycle. At that time, the motorcycle lost its balance and both the assailants fell on the ground. They both the apprehended by the victims and the public persons also gave them beatings. The motorcycle rider was identified as accused no. 1 Honey and the pillion rider as accused no. 2 Harsh. Upon search, the mobile of the complainant was recovered from the right side pocket of the trousers of accused no. 2 Harsh. The complainant made a call to police and upon their arrival, both the assailants were handed over to them. On the statement of the complainant, present FIR was registered and both the accused persons were booked. During investigation, the accused persons disclosed about the involvement of the accused no. 3 Rahul Singh in the conspiracy, whose motorcycle had been used in the offence. As such, accused no. 3 was also apprehended and booked in the case. After completion of investigation, chargesheet was filed against all the three accused persons on 29.01.2018, alleging commission of offences punishable under section 392/411/34/120B IPC.
3. Cognizance of the offences under section 392/34 and 120B IPC was taken by the court on 29.01.2018. Vide order dated 07.03.2018, charges were framed against all the three accused persons. Charge was framed against accused no. 1 and 2 for commission of offences FIR No. 246/2017 P.S. Desh Bandhu Gupta Road Page No. 3 of 8 under section 392/34 IPC as well as 120B IPC read with 392/411 IPC. Charge was framed against accused no. 3 for commission of offence under section 120B IPC read with 392/411 IPC. The accused persons pleaded not guilty and claimed trial.
4. At the trial, prosecution examined three witnesses in its support. PW-1 Suhail was the complainant and PW-2 Md. Faizal was his companion who had apprehended the accused no. 1 and 2 at the spot. However, both of them did not support the prosecution case as to the identity of the accused persons. PW-3 SI Priyank Rana was the Investigating Officer (IO) of the case. In view of the statements of the witnesses examined on record, no other witness was examined in the court.
5. PW-1 Mohd. Suhail and PW-2 Faizal, being the complainant and his companion, respectively, and being the sole eye-witnesses, deposed about the incident of robbery. But they did not support the prosecution case as to identity of the assailants. They did not depose about apprehension of the accused persons at the spot, or handing over them to the police, or their arrest or recovery of phone from their possession. They were duly cross-examined by the Ld. APP for the State but they denied all the suggestions given to them. Though they identified their signatures on the documents prepared at the spot, yet express ignorance about their contents. They did not identify the accused persons despite being pointed out by the Ld. APP. PW-3 SI Priyank Rana deposed about the investigative steps after he reached at FIR No. 246/2017 P.S. Desh Bandhu Gupta Road Page No. 4 of 8 the spot when the accused persons were handed over too him by the complainant and his companion.
6. Statements of the accused persons under section 313 CrPC were recorded on 26.04.2018 wherein they denied the allegations and pleaded innocence. They stated that they never committed the offence and were falsely implicated by the complainant in connivance with the police officials on some other issue. They did not lead any evidence in defence.
7. It is in these circumstances that the Ld. APP has argued that the hostility of PW-1 and PW-2 should not come in way of conviction of the accused persons who had been apprehended at the spot itself and their identities were also given in the complaint on the basis of which the FIR had been registered. It is submitted that PW-1 and PW-2 have apparently been won over by the accused persons, as they have refused to identify the accused persons despite the fact that their identifies were disclosed in the original complaint itself and the victims duly identified their signatures on all the documents prepared at the spot including the arrest memos.
8. On the other hand, Ld. Defence Counsel accused has argued that the prosecution case has to fail because there is no witness who could identify them to be the offenders and that there is no incriminating material against them.
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9. I have considered the rival submissions made by the Ld. APP for the State as well as the Ld. Defence Counsel for the accused persons, and have perused the record.
10. A perusal of the evidence would clearly show that as per the prosecution version, the accused no. 1 and 2 had been apprehended at the spot by the PW-1 and PW-2. Thus, only PW-1 and PW-2 were supposed to be the eye-witnesses on whose testimony the prosecution case could stand. However, both these 'star witnesses' did not support the prosecution case as to apprehension of the accused persons at the spot, handing them over to the police, mentioning their names in the complaint, their arrest at the spot and their identities to be the assailants. It is true that PW-1 and PW-2 identified their signatures on the documents prepared at the spot including the arrest memos and seizure memos, which could have connected the accused persons to the offence, but again, PW-1 and PW-2 denied their knowledge about the contents of the documents prepared at the spot, stating that they had simply signed the same. In such a position, they is every possibility that the witnesses had been won over by the accused persons (as could also be seen from the orders passed at the time of dismissal of their bail applications, wherein Ld. Defence Counsel has contended that the matter stood 'settled' between the parties). In any case, giving the complete hostility of the prime and the only eye- witnesses to the incident, the court is not in a position to rely on their evidence to convict the accused persons. Other than the evidence of these witness, there is no witness who could have deposed anything FIR No. 246/2017 P.S. Desh Bandhu Gupta Road Page No. 6 of 8 with respect to the alleged incident. PW-3 only deposed about investigative steps after he reached at the spot, but he could not have deposed anything about the incident of theft/robbery or any act on the part of the accused persons which would amount to an offence. He proceeded on the basis of statement of the complainant but the complainant never supported the prosecution case. As far as accused no. 3 is concerned, case against him is based only on disclosure statement made by the accused persons while in police custody, without any further discovery of any fact. There is no evidence of existence of any conspiracy to commit an offence, except use of motorcycle of accused no. 3, which in view of hostility of PW-1 and PW-2 also renders this fact not much relevant. Therefore, when there is no witness who could identify the accused persons to be the offenders, there is nothing on the basis of which the Court may indict them. By not getting the support from PW-1 and PW-2, there is no evidence with the prosecution to establish that the accused persons had robbed the complainant under any conspiracy or in furtherance of their common intention. The evidence on record cannot be relied upon to hold the accused persons guilty.
11. The burden is always on the prosecution to establish this fact and this burden never shifts on the accused persons to explain that they were not the offenders.
12. In view of the above discussions, it can be said that prosecution has not been able to prove its case against the accused persons beyond FIR No. 246/2017 P.S. Desh Bandhu Gupta Road Page No. 7 of 8 the shadow of reasonable doubt, primarily due to failure of the complainant PW-1 and his companion PW-2 to support the prosecutio case as to identify of the accused persons. The benefit of this has to go to the accused persons.
13. The accused Honey, Harsh and Rahul Singh are therefore given the benefit of doubt and are acquitted of the charges. Accused Honey and Harsh be released from JC if not wanted in any other case. The bail bond of accused Rahul Singh shall remain in force for next six months in terms of Section 437-A CrPC.
Digitally signed by
14. File be consigned to Record Room. ASHU ASHU GARG Date:
GARG 2018.05.01
10:50:24
Announced in the open Court +0530
this 26th Day of April 2018 (Ashu Garg)
Chief Metropolitan Magistrate (Central)
Tis Hazari Courts, Delhi
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