Delhi District Court
State vs . on 30 July, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Sh. Dev Chaudhary, DJS
Cr. Case No. -: 6167/2020
Unique Case ID No. -: DLSW020257222020
FIR No. -: 613/2020
Police Station -: Chhawla
Section(s) -: 392/34 IPC
In the matter of -
STATE
VS.
1) ANKIT
S/o Sh. Nagender
R/o Gali No. 3,
Jarman Colony,
Ramkumar KA,
Village Khaira, New Delhi.
2) RAJU
S/o Sh. Dalip Singh
R/o H.No. 1186, Jatiya Mohalla,
Najafgarh, New Delhi.
.... Accused
1.Name of Complainant : Sh. Aaram Dass
1) Ankit
2. Name of Accused :
2) Raju Offence complained of or
3. : 392/34 IPC proved
4. Plea of Accused : Not Guilty Date of commission of
5. : 20.06.2020 offence
6. Date of Filing of case : 25.09.2020
7. Date of Reserving Order : 30.07.2022 Digitally signed by DEV CHAUDHARY DEV Cr. Case No. 6167/2020 State vs. Ankit & Anr. Page 1 of 8 CHAUDHARY Date:
2022.07.31 12:39:17 +0530
8. Date of Pronouncement : 30.07.2022
9. Final Order : Acquitted Argued by -: Sh. Naween Kumar, Ld. APP for the State.
Sh. Lokesh Kumar, Ld. LAC for the accused.
BRIEF STATEMENT OF REASONS FOR THE DECISION -:
FACTUAL MATRIX -
1. Briefly stated, the case of the prosecution is that on 20.06.2020, the complainant was going to Najafgarh Mandi to collect vegetables. When he reached at the road near Deenpur-Goyla Dairy, three persons came on a motorcycle and stopped him. They robbed him of the Rs. 3000/- that he was carrying with him and fled away. The present accused persons were thereafter arrested on the basis of their disclosure in another matter. As such, it is alleged that the accused committed the offence punishable under Section 392/34 of the Indian Penal Code, 1860 (hereinafter, "IPC"), for which FIR no. 613/2020 was registered at PS Chhawla.
INVESTIGATION AND APPEARANCE OF ACCUSED -
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the charge-sheet against the accused was filed. After taking cognizance of the offence, the accused were summoned to face trial.
3. On their appearance, a copy of charge-sheet was supplied to them in terms of Section 207 of the Code of Criminal Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2022.07.31 Cr. Case No. 6167/2020 State vs. Ankit & Anr. Page 2 of 8 12:39:24 +0530 Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the present accused, charge under Sections 392/34 IPC was framed against the accused. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE -
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt-:
ORAL EVIDENCE PW-1 : Aaram Dass (complainant) PW-2 : SI Shubham (IO) DOCUMENTARY EVIDENCE Ex PW1/A : Statement of Aaram Dass Ex. PW 1/B : Site Plan Ex. PW1/C & : Arrest memo of accused persons Ex. PW1/D Mark X : Statement Ex. PW2/A : DD No. 10A Ex. PW2/F : Tehrir Ex. PW2/G and : Pointing out memo Ex. PW2/H Ex. PW2/I : Seizure memo of cash Ex. PW2/J : Seizure memo of registration plate Ex. P1 : Number plate Ex. P2 : Cash
5. PW1 Aaram Dass is the complainant. He stated that the incident took place around two years back when there was lockdown. He did not remember date, month or year of the incident and stated that when he was going on his rickshaw cart at about Digitally signed by DEV 03.00 am, three persons came from behind and stopped his cart DEV CHAUDHARY CHAUDHARY Date:
2022.07.31 12:39:30 +0530 Cr. Case No. 6167/2020 State vs. Ankit & Anr. Page 3 of 8 using their motorcycle. Two boys started beating him using an iron rod and one boy took Rs. 3000/ from his pocket. They then ran away and he made a call to 100 number. He stated that he can not identify the assailants as it was night time and he was terrified. 5.1. In his cross-examination, PW1 Aaram Dass denied all the suggestions of the Ld. APP and further denied to identify the accused from the witness box.
6. The IO, PW-2, has supported the version of the prosecution.
7. Since the prosecution had cited only one independent/public witness in the present matter, who is the complainant himself, and rest of the five prosecution witnesses were all police officials, prosecution evidence was closed vide separate order passed today, keeping in view the submissions of the Ld. APP.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE -
8. Thereafter, before the start of defence evidence, in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against them, the statements of the accused were recorded without oath under Section 281 read with Section 313 CrPC. In reply, the accused stated that they have been falsely implicated in the present case. Thereafter, they stated that they do not wish to lead evidence in their defence.
ARGUMENTS -
9. I have heard the Ld. APP for the State and Ld. counsel for the accused at length. I have also given my thoughtful Digitally signed by DEV DEV CHAUDHARY consideration to the material appearing on record.
CHAUDHARY Date:
2022.07.31 12:39:35 Cr. Case No. 6167/2020 State vs. Ankit & Anr. Page 4 of 8 +0530
10. It is argued by the 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 offences charged against the accused. As such, it is prayed that the accused be punished for the said offences.
11. Per contra, Ld. counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. Ld. counsel has argued that the 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 the accused be acquitted for the said offences.
INGREDIENTS OF THE OFFENCE -
12. The accused have been charged for the offence under Section 392/34 of the IPC. For offence under Section 392 IPC, it has to be proved that the accused committed either theft or extortion amounting to robbery, and it is to be further proved that other ingredients of the offence were fulfilled by the acts of the accused. For theft amounting to robbery, it is to be proved that the accused has voluntarily caused or attempted to cause death, hurt or wrongful restraint to the victim.
13. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond a reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points toward the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards. Digitally signed by DEV CHAUDHARY DEV CHAUDHARY Date:
2022.07.31 12:39:40 +0530 Cr. Case No. 6167/2020 State vs. Ankit & Anr. Page 5 of 8 HOSTILE WITNESSES -
14. The main witness of the prosecution has turned hostile in the present case. It is pertinent to note that under Indian law, the evidence of hostile witness is not discarded completely. The legal maxim, "false in uno false in omnibus" is not applicable in India. With respect to the evidentiary value of hostile witness, it was observed by the Apex Court in the case of Rohtash Kumar vs. State of Haryana (2013) 14 SCC 434, as under -
"25. 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."
15. Therefore, it has to be seen if the evidence of such hostile witness can be relied in part. In the present case, the evidence available on record is not sufficient to help the prosecution. PW1 has failed to identify the accused from the dock. Further, apart from the fact that the incident took place around two years back and three boys took his money after beating him, he has denied all the facts put forward by the prosecution. The witness further stated that on account of night time and the fact that the incident took place in a fraction of second during which he was terrified, he was unable to see the persons who committed the offence. He further stated that two - three years have passed since the incident. Although the witness has admitted that the site plan bears his signatures and his signatures also appear on the arrest memo of the accused, he has stated that his signatures were obtained Digitally on blank papers by the IO for purposes unknown. He has denied signed by DEV CHAUDHARY DEV CHAUDHARY Date:
2022.07.31 12:39:45 Cr. Case No. 6167/2020 State vs. Ankit & Anr. Page 6 of 8 +0530 making any statement to the IO regarding identification of the accused. No TIP was conducted in the present matter and the IO had only relied upon the statement of the witness recorded under Section 161 CrPC for identification of the accused, which has been denied by the complainant. A registration plate has been recovered by the IO in the present matter. However, there is no mention of the registration number in the police complaint Ex. PW1/A and the DD enrty Ex. PW2/A does not mention the full particulars of the registration plate. Even otherwise, the alleged recovery of the registration plate vide memo Ex. PW2/H was made from a tin shed, which is easily accessible by the public this factor can not be used to implicate the accused. The testimony of the IO can not prove the main ingredients of the main offence as he has only disclosed about the investigation done by him. Therefore, there is nothing on record to connect the accused with the commission of the offence. No other public witness of the incident has been cited and there is no other circumstance to point towards the guilt of the accused. Even if all the other prosecution witnesses were to be examined, the case of the prosecution could not have been proved.
16. Thus, even if the evidence of the hostile witness is considered partly, there is nothing to implicate the accused. As such, none of the essential ingredients of the offence stands fulfilled in the present case.
CONCLUSION -
17. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offence under Section 392/34 IPC beyond reasonable doubt. The Digitally signed by DEV CHAUDHARY DEV CHAUDHARY Date:
star witness of the prosecution i.e. the complainant has turned 2022.07.31 12:39:51 +0530 Cr. Case No. 6167/2020 State vs. Ankit & Anr. Page 7 of 8 completely hostile. There is no evidence to link the accused with the crime charged against them. Further, the ingredients of the offence are not fulfilled from the material on record.
17. Resultantly, the accused ANKIT AND RAJU are hereby found not guilty. They are hereby ACQUITTED of the offence under Section 392/34 IPC.
Pronounced in open court on 30.07.2022 in presence of the accused.
This judgment contains 8 pages and each page has been signed by the Digitally signed undersigned. DEV by DEV CHAUDHARY CHAUDHARY Date: 2022.07.31 12:39:59 +0530 (DEV CHAUDHARY) Metropolitan Magistrate - 07 South-West District, Dwarka Courts, New Delhi/ 30.07.2022 Cr. Case No. 6167/2020 State vs. Ankit & Anr. Page 8 of 8