Delhi District Court
(Judgment) State vs Rohit & Ors. on 18 January, 2019
(Judgment) State Vs Rohit & Ors.
FIR no.403/13
U/s 392/394/397/411/34 IPC
PS: Shalimar Bagh
IN THE COURT OF SHRI PANKAJ GUPTA: ADDL. SESSIONS JUDGE (FTC)
(NORTH-WEST): ROHINI COURTS: DELHI
Session Case No.202/18
CNR No. DLNW01- 003291-2018
State
Vs.
1. Rohit S/o Sh. Kundan Lal
R/o 703, Gali No.9, Ambedkar Nagar,
Haider Pur, Delhi.
2. Parveen Kumar S/o Sh. Dharam Pal
R/o 649, Gali No.7, Ambedkar Nagar,
Haider Pur, Delhi.
3. Rahul @ Nata S/o Sh. Hazari Lal
R/o B-718, Gali No.10, Ambedkar Nagar,
Haider Pur, Delhi. .........Accused
FIR No. : FIR No.403/2013
Police Station : Shalimar Bagh
Under Section : 392/394/397/411/34 IPC
Date of committal to Sessions Court : 27.03.2018
Date on which judgment reserved : 18.01.2019
Date on which judgment pronounced : 18.01.2019
JUDGMENT
1. This is a case under section 392/394/397/411/34 Indian Penal Code, 1860 (IPC).
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FIR no.403/13U/s 392/394/397/411/34 IPC PS: Shalimar Bagh CASE OF THE PROSECUTION
2. On 20.10.2013, at about 3:30pm, behind DA-Block, near Shamshan Ghat, Shalimar Bagh, Delhi Rohit (the accused no.1), Praveen Kumar (the accused no.2), Rahul @ Nata (the accused no.3) and Saurav (since expired) robbed the purse containing cash of Rs.1500/-, ATM Card and identity card of the complainant. They also robbed the mobile phone make Samsung of the complainant. In the subject incident, the accused no.1 used the knife and gave the stab injury on the thigh of the complainant. The complainant was removed to BJRM Hospital by the PCR Van. Subsequently, the accused no.3 was found in possession of cash amount of Rs.1500/- belonging to the complainant. On 29.10.2013, at about 9:00 pm, all the accused were arrested on the identification of the complainant.
CHARGES
3. Charge under section 392/34 IPC was settled against all the accused. Charge under section 397 IPC was also settled against the accused no.1. Charge under section 411 IPC was settled against the accused no.3. All the accused pleaded not guilty and claimed trial.
PUBLIC WITNESSES
4. PW4 Bablu Poddar (the complainant/victim) deposed that on 20.10.2013, after fin- ishing his work from CB-Block, Shalimar Bagh, he was going to his residence of Shalimar Bagh. At about 2:30 or 3:00 pm, when he reached near the cremation ground behind DA- Block, suddenly four boys came. One of the said boys caught hold his neck, another caught hold of his both hands and another took out his mobile phone make Samsung having mo- bile no. 9711951613 from front pocket of his shirt and another took out his black colour wallet containing Rs.1500/- cash from the back pocket of his pant, ATM card and his iden- tity proof. Cash of Rs.1,500/- was in the denomination of two currency notes of Rs. 500/- and five currency notes of Rs. 100/-. When he showed resistance, the accused no. 3 in-
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FIR no.403/13U/s 392/394/397/411/34 IPC PS: Shalimar Bagh flicted the knife injury on his right thigh. Thereafter, all the accused fled away from there. He went to his house and again came at the spot alongwith his nephew Rakesh who in- formed the police at number 100. Police took him to the hospital. Since, he had only a su- perficial scratch mark over his thigh, hence, he did not get himself medically examined. He lodged the complaint to the police i.e. Ex.PW-4/A.
5. PW4 also deposed that he along with the police officials searched for the assailants near Ayurvedic Hospital and four persons were found there. On his identification, those persons were apprehended and interrogated by the police. On conducting search of all the accused, his robbed cash amount of Rs.1,500/- was recovered and the same was seized vide seizure memo Ex.PW4/B. The accused were arrested vide arrest memos Ex.PW4/C, Ex.PW4/D and Ex.PW4/E. PW4 identified the currency notes.
POLICE WITNESSES
6. PW3 HC Narender deposed that on 20.10.2013, at about 5.05 pm, an information was received about robbery near DA-Block, near Shamshan Ghat, Shalimar Bagh, Delhi. The said information was reduced in daily diary register vide DD no. 50-B Ex.PW3/A.
7. PW1 ASI Pawan Kumar proved the FIR Ex.PW1/A and endorsement on the rukka Ex.PW1/B.
8. PW2 HC Mohan Chand deposed that on 20.10.2013, on receipt of information re- garding robbery near DA-Block, Shamshan Ghat, Shalimar Bagh, he along with SI Manish (PW7) reached at the spot but nobody was found there. Public persons informed them that the victim had been removed to BJRM Hospital by PCR Van. Thereafter, he alongwith PW7 reached at BJRM Hospital where PW4 met them. PW7 recorded his statement.
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FIR no.403/13U/s 392/394/397/411/34 IPC PS: Shalimar Bagh
9. PW2 further deposed that PW7 prepared the rukka on the statement of PW4 and handed over to him for registration of FIR and he did the needful. After registration of FIR, he came to the spot where PW7 alongwith HC Sukhdev, Ct. Sher Singh and PW4 met him. He handed over copy of FIR and original rukka to PW7. Thereafter, they searched for the assailants near Ayurvedic Hospital and four persons were found there. PW4 pointed out to- wards those persons and accordingly, they were apprehended. Names of those persons were revealed as Praveen, Rohit, Rahul and Sourav (since expired). PW2 identified the accused persons by face but due to lapse of time, he could not tell their names.
10. PW2 also deposed that PW7 took the search of all the accused and from the posses- sion of the accused no. 3, two currency notes of Rs. 500/- and five currency notes of Rs. 100/- were recovered. PW4 identified the currency notes and stated that the accused no. 1 had put the knife on his person. Thereafter, PW7 seized the said currency notes. All the ac- cused were arrested. Despite efforts, the knife could not be recovered. PW2 identified the accused no. 1 and 2. He also identified two currency notes of Rs. 500/- each, and five cur- rency notes of Rs. 100/- each as Ex.P-1 (colly) and Ex.P-2 (colly) respectively.
11. PW5 HC Sukhdev Singh and PW6 Ct. Sher Singh also deposed about the arrest of all the accused and recovery of currency notes from them on the lines as deposed by PW2 and PW4 and identified them.
12. PW6 also deposed that personal search of accused persons was conducted vide memos Ex.PW6/A, Ex.PW6/B and Ex.PW6/C respectively and they made the disclosure statement Ex.PW6/D, Ex.PW6/E and Ex.PW6/F respectively. He identified the currency notes Ex.P-1 (colly) and Ex.P-2 (colly).
13. PW7 SI Manish Kumar (Investigating Officer) also deposed the facts from reaching the spot till arrest of the accused persons and recovery made from them as deposed by PW2, PW4, PW5 and PW6. He further deposed that next day, he had made an inquiry re-
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FIR no.403/13U/s 392/394/397/411/34 IPC PS: Shalimar Bagh garding age of Saurabh and he was found major. Accordingly, he was arrested at JJB Board vide arrest memo Ex.PW7/C. He identified the currency notes Ex.P-1 (colly) and Ex.P-2 (colly).
STATEMENT OF ACCUSED
14. After completing the prosecution evidence, statement of all the accused was recorded under section 313 Code of Criminal Procedure, 1973 (CrPC) in which all the in- criminating evidence/material were put to them which they have denied. All the accused have stated that they are innocent and have been falsely implicated in this case.
DEFENCE EVIDENCE
15. The accused no. 1 has examined Deepak Kumar Singh (DW1) in his defence. The accused no. 2 and 3 have not led evidence despite given opportunity.
16. I have heard the ld. APP for the State and counsel for the accused and have perused the material available on record.
17. According to the prosecution, on 20.10.2013, at about 3:30pm, behind DA-Block, near Shamshan Ghat, Shalimar Bagh, Delhi, all the accused along with Saurav (since expired) robbed the purse containing cash of Rs.1500/-, ATM Card and identity card of PW4. They also robbed the mobile phone make Samsung of PW4. In the subject incident, the accused no.1 used the knife and gave the stab injury on the thigh of PW4. It is evident from the testimony of PW-4, after the incident, he visited his house from where he along with his nephew Rakesh came back to the spot and informed the police. DD no.50B was recorded at 5:05pm on 20.10.2013. Thereafter, PCR van removed PW-4 to the BJRM Hospital. At about 7:14pm, the statement of PW-4 Ex.PW-4/A was recorded. At 7:14pm, Page no.5/ 9 (Judgment) State Vs Rohit & Ors.
FIR no.403/13U/s 392/394/397/411/34 IPC PS: Shalimar Bagh the subject FIR was lodged.
18. In his testimony, PW4 deposed that in the subject incident, he sustained stab injury on his right thigh and was removed to the hospital by the PCR van. According to PW-7, he visited the BJRM Hospital and collected the MLC of PW-4. The prosecution has filed the MLC of PW-4 on the court record, however, the prosecution has not examined any doctor to prove the same. To this effect, PW-4 deposed that he was taken to the hospital by the police but he did not get himself medically examined as he had only superficial scratch mark over his thigh. In DD no.50B, there is no mention that PW-4 sustained any injury. As such, the prosecution has failed to prove that PW-4 sustained any injury in the subject incident as deposed by him.
19. Case of the prosecution is that on receipt of information, PW-7 along with PW-2 reached at BJRM Hospital where PW-4 met him and PW-7 recorded statement of PW-4 and on that basis, he got the FIR registered.
20. PW-2, PW-4 and PW-7 deposed that PW-4 met PW-7 in the hospital where he recorded his statement.
21. Now the question arises at what time PW-7 met PW-4 in the hospital and recorded his statement.
22. As held above, DD no.50B Ex. PW3/A was recorded at about 5:05pm and thereafter, PW-4 was removed to the hospital by the PCR officials. PW-4 in his testimony deposed that it took 30-45 minutes to reach BJRM Hospital from the spot with PCR official. It implies that PW-4 must have reached the hospital between 5:45 pm and 6:00pm.
23. As held above, PW-4 had not himself got medically examined and the prosecution has also failed to prove the MLC of PW-4.
24. It is evident from the cross examination of PW-7 that PW-4 had left BJRM Hospital Page no.6/ 9 (Judgment) State Vs Rohit & Ors.
FIR no.403/13U/s 392/394/397/411/34 IPC PS: Shalimar Bagh after preparation of his MLC which he obtained subsequently and thereafter, he met PW-4 at the gate of BJRM Hospital. It implies that before collecting the MLC of PW-4, PW-7 had not met PW-4 and met him thereafter. He also deposed that before the incident, he did not know PW-4. Regarding his meeting with PW-4, PW-7 deposed that he noticed one person with injury standing at the gate of BJRM Hospital and on inquiry, he revealed his name as Bablu i.e. PW4. According to PW-4, he sustained injury on his right thigh and that was superficial scratch. It is not the case of PW-4 that due to the said injury, there was a cut on his pant and accordingly, his said injury got exposed. As such, PW-7 has failed to explain as to how he noticed the said injury of PW-4. It is also surprising that in the hospital, PW-7 only noticed PW-4 with some injury and made inquiry from him only and came to know that he was the victim in the subject incident.
25. Further, PW-7 in his cross examination deposed that he met PW-4 in the hospital at about 5:30pm. It is contrary to the testimony of PW-4 according to which he reached the hospital between 5:45 pm and 6:00pm. It is own case of PW-7 that once PW-4 reached at the hospital, he was not present there. Therefore, there was no occasion for PW-7 to meet PW-4 at 5:30pm.
26. PW-4 in his testimony deposed that from the hospital, he along with PW-7 and other police staff reached at the spot between 7:00 pm and 7:30pm. As held above, according to PW-7, he met PW-4 after obtaining his MLC at BJRM Hospital. Prosecution has filed the MLC of PW-4 but has not proved the same as per law. However, since it is filed by the prosecution itself, hence, it can be read against the prosecution for the limited purpose i.e. as per the said MLC, PW-4 absconded and it borne signature with time 7:35pm dated 20.10.2013. It implies that after 7:30pm, PW-7 obtained the MLC and thereafter, he met PW-4. But this is contrary to the statement of PW-7 that he met PW-4 in the hospital at 5:30pm. It is also contrary to the testimony of PW-4 that he left the hospital along with PW-7 between 7:00 pm and 7:30pm. As such, the meeting of PW-7 with PW-4 in the hospital on 20.10.2013 is highly doubtful. Consequently, the recording of the statement of PW-4 at the hospital is also doubtful.
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FIR no.403/13U/s 392/394/397/411/34 IPC PS: Shalimar Bagh
27. The prosecution examined PW-2, PW-4, PW-5, PW-6 and PW-7 to prove the arrest of the accused persons. All the said witnesses deposed on the same line that PW-4 pointed towards four boys standing near Ayurvedic Hospital and at his instance, all the accused persons were arrested vide arrest memo Ex.PW-4/C, Ex.PW-4/D, Ex.PW-4/E between 9:00 pm and 9:20pm.
28. To this effect PW-4 deposed that the accused persons were arrested between 7:00 pm and 7:30pm. This is contrary to the contents of the said arrest memos. In his cross examination, he deposed that he signed the arrest memo at BJRM hospital. It is evident from the testimony of PW-7 as well as PW-4 that after absconding from BJRM hospital on 20.10.2013, PW-4 had not visited the BJRM hospital for his treatment relating to the subject incident. As such, there was no occasion for him to sign arrest memos at BJRM hospital, once, it is the own case of the prosecution that the accused were arrested once PW-4 left the hospital along with PW-7. Therefore, the testimony of the said witnesses as to arrest of the accused persons is not reliable in nature.
29. Admittedly, the mobile phone, ATM card and identity card of PW-4 are not recovered in the present case.
30. According to the prosecution, the currency notes Ex.P-1 (colly) and Ex.P-2 (colly) were recovered from the possession of the accused no.3. It is evident from the testimony of PW2, PW-4, PW-5, PW-6 and PW-7 that the serial number of the said currency notes were not mentioned in the seizure memo. Further, there was no specific mark on the said currency notes to link the same with PW-4.
31. In view of the foregoing discussions, I am of the opinion that the prosecution has failed to prove its case beyond reasonable doubt against accused persons. Hence, all the accused are held not guilty for the offence under section 392/34 IPC. The accused no.1 is also held not guilty for the offence under section 397 IPC. The accused no.3 is also held not guilty under section 411 IPC.
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FIR no.403/13U/s 392/394/397/411/34 IPC PS: Shalimar Bagh
32. Accordingly, all the accused are acquitted for the offence under section 392/34 IPC. The accused no.1 is also acquitted for the offence under section 397 IPC. The accused no.3 is also acquitted for the offence under section 411 IPC.
33. File be consigned to Record Room.
Digitally signed by PANKAJ PANKAJ GUPTA
Announced in the open court GUPTA Date:
2019.01.19
on this 18th day of January, 2019. 14:33:21 +0530
(Pankaj Gupta)
ASJ, FTC, NorthWest
Rohini: Delhi
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