Delhi District Court
State vs Kalu on 16 October, 2015
FIR No.24/11 PS : Nand Nagri
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI.
FIR No. : 24/2011
Under Section : 392/397/34 IPC
Police Station : Nand Nagri
Sessions Case No : 49/14
Unique I.D. No. : 02402R0183092011
In the matter of :-
STATE
VERSUS
1. KALU
S/o. Sh. Mukesh,
R/o.Jhuggi No.51/91, C-1 Block,
Nand Nagri, Delhi.
2. AVINASH
S/o Sh. Rajender Kumar,
R/o.H.No.E-2/54, Shiv Ram Park,
Nangloi, Delhi.
......Accused persons
Date of Institution : 10.06.2011
Date of Committal : 23.06.2011
Date of receiving in this Court : 27.01.2014
Date of reserving judgment : 29.09.2015
Date of pronouncement : 16.10.2015
Decision : Acquitted.
(Section 437-A Cr.P.C complied with)
JUDGMENT
THE CASE SET UP BY THE PROSECUTION :-
1. On 28.01.2011 at about 9:45 pm, complainant Vijay Kumar was going to House no.2/94, Nand Nagri, along with his nephew Sanjay. When (Pulastya Pramachala) Page no. 1 of 13 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.24/11 PS : Nand Nagri they crossed the railway line and reached D block in Nand Nagri, four boys surrounded them. One of them caught hold of the complainant and put knife on him. The other boy, who was being called as Kalu took out Rs.1,500/- from the pocket of his jacket and one mobile phone of Gild company having connection no.9711254178 from the pocket of his pant. Other two boys had caught hold of Sanjay. One of them was being called as Avinash. Avinash took out purse from the pant of Sanjay, which contained Rs.3,000/- in cash apart from certain documents, I-card, etc. All those four boys, after committing robbery, fled away towards railway line. Complainant Vijay made call at 100 number and local police reached there. SI Kapil Kumar recorded statement of the complainant, on the basis of which present FIR was registered u/s 392/34 IPC. During investigation SI Manmeet Malik arrested accused Avinash at the instance of Sanjay. On the basis of disclosure statement given by accused Avinash, other accused persons were searched for. Accused Kalu surrendered before the court and was formally arrested in this case. Later on, one juvenile Anuj was also apprehended, who was found in possession of the robbed mobile phone.
2. After completion of the investigation, accused Avinash and Kalu were charge-sheeted for offence u/s 392/397/34 IPC. CHARGE :-
3. Charges were framed against both accused persons on 07.07.2011 for offences punishable under Section 392/397/34 IPC, to which they pleaded not guilty and claimed trial.
4. It was alleged against both accused persons that on 28.01.2011, at (Pulastya Pramachala) Page no. 2 of 13 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.24/11 PS : Nand Nagri about 09:45 PM, near Railway Fatak, D-Block, Nand Nagri, Delhi, within the jurisdiction of PS Nand Nagri, both of them along with their associates namely Sonu and Rinku formed common intention to commit robbery and robbed Rs.1,500/-, mobile phone make Gild company from complainant/Vijay Kumar and purse containing Rs.
3,000/-, I-card and some other documents from one Sanjay at the point of knife and thereby they committed offences punishable under Section 392/34 IPC.
5. It was further alleged against both accused persons that on the aforesaid date, time and place, they all in furtherance of their common intention were armed with deadly weapons i.e. knife while committing robbery and thereby they committed offences punishable under Section 397/34 IPC.
PROSECUTION EVIDENCE :-
Prosecution examined 16 witnesses in support of its case.
PW Name of Role of witness Proved document/article
No. Witness
PW-1 Vijay Victim Statement given to IO i.e.
Kumar Ex.PW-1/A, site plan prepared by
IO i.e. Ex.PW-1/B,
PW-2 Ct. Sonu Accompanied IO/SI Arrest memo of accused Avinash
Kodian Manmeet. Witness i.e. Ex.PW-2/A, personal search
to arrest of accused memo of accused Avinash i.e. Avinash. Ex.PW-2/B, pointing out memo of accused Avinash i.e. Ex.PW-2/C (Pulastya Pramachala) Page no. 3 of 13 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.24/11 PS : Nand Nagri PW-3 HC Mur Accompanied IO/SI Disclosure statement of accused Salin Khan Manmeet. Witness Avinash i.e. PW-3/A, accused Kalu to arrest of accused pointed out the place of Avinash. occurrence vide memo Ex.PW-3/C, disclosure statement of accused Kalu i.e. PW-3/B PW-4 ASI Dal Duty Officer Copy of FIR i.e. Ex.PW-4/A, Chand endorsement of ASI Dal Chand on rukka i.e. Ex.PW-4/B PW-5 Ct. Ashok Got FIR registered Kumar on the basis of rukka given to him by SI Kapil Kumar.
PW-6 Sanjay Victim
PW-7 Ct. Satpal Joined investigation
with Insp. N.S.
Rana, wireless
operator.
PW-8 HC Joined investigation
Sitaram with HC Murslin, Ct.
Sonu and IO/SI
Manmeet.
PW-9 HC Begraj Witness to arrest of Arrest memo of accused Kalu i.e.
Singh Kalu. Ex.PW-9/A, personal search memo
of accused Kalu i.e. Ex.PW-9/B,
disclosure statement of accused
Kalu i.e. PW-9/C
PW-10 SI Kapil Recorded statement Endorsement of Ex.PW-1/B i.e.
Kumar of complainant and Ex.PW-10/A
prepared rukka and
site plan.
PW-11 SI IO of this case.
Manmeet After registration of
FIR, arrested
Avinash.
(Pulastya Pramachala)
Page no. 4 of 13 ASJ (Shahdara)
Karkardooma Courts / Delhi
FIR No.24/11 PS : Nand Nagri
PW-12 SI Manish He arrested Kalu in A mobile phone of Gild company
Kumar the court. containing battery
Ex.P-12/Article-1.
PW-13 Retired He obtained one Carbon copy of application for
Inspector day PC remand of custodial interrogation of accused
Narender accused Kalu. Kalu i.e. Ex.PW-13/A.
Singh
Rana
PW-14 Sh. Nodal Officer, Bharti Customer application form of
Chandra Airtel Limited, who mobile no. 9818462983 i.e.
Shekhar proved CAF, CDR, Ex.PW-14/A, call detail records of
certificate under said number i.e. Ex.PW-14/B,
Section 65-B of certificate under Section 65-B of
Evidence Act and Evidence Act i.e. Ex.PW-14/C and
Cell ID chart of Cell ID chart i.e. Ex.PW-14/D.
connection no.
9818462983
belonging to Sh.
Kailash Chand.
PW-15 HC MHC(M) Photocopy of relevant entry of Gild
Bhagmal mobile phone in register no.19 i.e.
Singh Ex.PW-15/A.
PW-16 Sh. Judicial Assistant, Seizure memo of mobile phone
Roshan Juvenile Justice having two IMEI numbers i.e.
Lal Board-II, who 359735021053366 and
proved photocopy of 359735021053374 i.e.
seizure memo of Ex.PW-16/A.
mobile phone.
PLEA OF ACCUSED UNDER SECTION 313 CR.P.C. :-
6. In the statement under Section 313 Cr.P.C, both accused Avinash and Kalu denied their involvement in the alleged robbery. Both of them took plea that they did not know PW-1 and PW-6 i.e. victims of this case. They further stated that they were falsely implicated in this case. Accused Avinash further deposed that he was shown to PW-6 after (Pulastya Pramachala) Page no. 5 of 13 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.24/11 PS : Nand Nagri being called in police station and thereafter, he was arrested by the police.
APPRECIATION OF EVIDENCE AS WELL AS ARGUMENTS AND FINDINGS :-
7. PW-1 and PW-6 were the victims of the alleged incident of robbery and hence they are the most important witnesses of the prosecution. According to PW-1, on 28.01.2011 at about 09:45 PM, he along with PW-6/Sanjay were going to Nand Nagri. When they crossed railway crossing and reached D-Block, Nand Nagri, accused Kalu came to them and held PW-1. Kalu threatened PW-1 to hand over his mobile phone and purse with threat to stab him. PW-1 handed over his mobile phone of Gild company having connection no.9711254178 and purse containing Rs.1,500/-. Thereafter, Kalu ran away from that place. PW-6 made call to police at 100 number and police officials reached there. They searched for the accused, but they could not trace him. Thereafter, PW-1 and PW-6 went to police station, where police recorded statement of PW-6. After around 15-20 days of the incident, PW-1 and PW-6 visited police station Nand Nagri and they identified accused Kalu in the police station. PW-6 had also identified accused Kalu as well as other co-accused in the police station. PW-1 identified Kalu in the Court correctly.
8. However, PW-1 was cross-examined by ld. APP as he did not testify as per his previous statement. In his cross-examination by ld. Addl. PP, PW-1 admitted his signature on the statement Ex.PW-1/A. He denied the suggestion that four boys had come to rob them and out of them one boy had put knife on his waist. He admitted the suggestion that (Pulastya Pramachala) Page no. 6 of 13 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.24/11 PS : Nand Nagri Kalu had removed Rs.1,500/- from his pocket and had removed mobile phone from pocket of his pant. He further admitted that one of the boy had held PW-6 and another boy was being called as Avinash by the other. He also admitted that Avinash had removed purse from the pocket of PW-6, which contained Rs.3,000/-, some documents and I- card. However, once again he denied the suggestion that there were total four boys involved in this robbery. He added that there were only two boys. He denied the suggestion that accused Avinash, who was present in the court was the same person, who removed purse from the pocket of PW-6.
9. PW-1 was cross-examined by counsel for Kalu as well. In this cross-
examination, he testified that he had made call to police over 100 number and his statement was not recorded at the railway crossing, though statement of PW-6 was recorded there. He further deposed that when he reached police station, accused Kalu was present there and he had seen him in lock-up. Though, he denied that he was shown photograph of Kalu or that he had identified Kalu at the instance of police. He further deposed that on the night of incident his statement was recorded in police station in his presence at his instance.
10.On the other hand, PW-6/Sanjay though deposed about the robbery at same place and on same time, but he gave different description of the robbery. According to PW-6, four boys had come and surrounded PW-1 and PW-6. One of them had put knife over stomach of PW-1. Another one had removed mobile phone and Rs.1,500/- from the pocket of PW-1. The third one had caught hold of PW-6 and fourth one had removed his purse. According to PW-6, he had made a call at 100 (Pulastya Pramachala) Page no. 7 of 13 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.24/11 PS : Nand Nagri number as his mobile phone was not robbed by the accused persons. Police came and recorded statement of PW-1 and thereafter, his statement was also recorded. Thereafter, on 13.03.2011 PW-6 was called at police station and on that day at about 11:30 AM, PW-6 along with three police officials reached D-Block, Nand Nagri at railway crossing. At that place, he saw and pointed out to one of the robbers, whose name was disclosed as Avinash. Police arrested Avinash. PW-6 correctly identified accused Avinash in the Court. He further deposed that Avinash had made disclosure statement in his presence, which also bear his signature. In respect of other accused persons, PW-6 deposed that he could not identify them. PW-6 was also cross- examined by ld. APP and in his cross-examination, he admitted all the suggestion put to him by ld. APP. He was suggested that on 17.03.2011 he had come to Karkardooma Court for personal work and on the main gate, IO met him with one boy, who was identified by this witness as accused Kalu and was identified as one of the robbers. He was also suggested that on 13.03.2011, while he was going to the house of his sister, he saw accused Avinash standing at the railway crossing, D- Block, Nand Nagri and thereafter, he made a call to SI Manmeet Malik/IO, who along with police staff reached there and arrested Avinash.
11. In his cross-examination by defence counsel, PW-6 deposed that his statement was recorded on three occasions. He further deposed that accused persons were addressing themselves with their name, but he could not tell those names. He could not tell the specific identification of the knife used in this incident. He admitted the suggestion that his (Pulastya Pramachala) Page no. 8 of 13 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.24/11 PS : Nand Nagri statement was not recorded at the spot. He further deposed that on 13.03.2011 his statement was recorded at railway crossing. He also deposed that police had called him to police station for search of accused persons. He was also called at the police station for identification of accused persons on two occasions. On both these occasions, one accused each was present in the police station and both the accused persons were got arrested by him. He further deposed that accused Avinash was identified by him at police station. But at the same time, he also deposed that police did not interrogate accused Avinash in his presence. He further deposed that he did not remember, if IO had recorded disclosure statement of accused persons in his presence. He stated that IO had obtained his signature on one blank paper at the gate of Karkardooma Court. He further admitted the suggestion that he had seen accused Avinash at police station and prior to that he had seen him on the day of incident. However, once again on suggestion being put by ld. APP in his re-examination, PW-6 admitted another suggestion that Avinash was arrested by IO at his instance on 13.03.2011 from railway crossing. He further deposed that after Avinash was taken to police station, he had again identified him in police station. He further deposed that Avinash was arrested at the railway crossing of Ashok Nagar.
12.On careful scrutiny of the testimony of aforesaid two star witnesses of prosecution, I find that their testimonies are destructive of the case presented by prosecution as well as the facts narrated by each one of them. According to PW-1 only two robbers were involved in this incident, but Avinash was not one of them. On the other hand, (Pulastya Pramachala) Page no. 9 of 13 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.24/11 PS : Nand Nagri according to PW-6, there were four robbers and Avinash was one of them. Although, PW-6 he did not specifically point out to Kalu till the time he was so suggested by ld. APP.
13. According to prosecution, Avinash was arrested at the instance of PW-6, from railway crossing, D-Block, Nand Nagri, when PW-6 himself had made a call to IO/PW-11 regarding presence of Avinash at that place. Testimony of PW-6 had been fluctuating and volatile in respect of this fact. At the first instance, he deposed that he had left police station along with other police staff in search of accused persons and in that process they reached railway crossing, D-Block, Nand Nagri, where Avinash was arrested. On second instance in response to suggestion given by ld. APP, he admitted that he had made a call to PW-11 after seeing Avinash at the railway crossing of D-Block, Nand Nagri and thereafter police reached there and arrested him. Thereafter, once again he came up with another version that he visited police station on call of the police officials twice and on each of the occasion, he identified one accused person in the police station, including Avinash. Thereafter, he again admitted that he had seen accused Avinash in the police station. But subsequently when ld. Addl. PP again re-examined him, then once again PW-6 changed the version to admit the suggestion that Avinash was arrested by IO at his instance from railway crossing. On next occasion he changed the place of arrest of Avinash, stating that he was arrested from railway crossing of Ashok Nagar. So much of variation in respect of a single fact has only effect to cast a sever doubt over the given description of arrest of accused Avinash.
14. Furthermore, the contradiction regarding number of robbers involved in (Pulastya Pramachala) Page no. 10 of 13 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.24/11 PS : Nand Nagri this case, as appearing in the testimony of PW-1 and PW-6 is irreconcilable and refusal to identify accused Avinash as one of the robbers by PW-1 also creates such kind of dent in the evidence of prosecution, which has no explanation and cure.
15.As regards, identification of Kalu by PW-1 is concerned, according to prosecution Kalu had surrendered before the Court on 16.03.2011. This was so stated by PW-9/HC Begraj Singh as well as PW-12/SI Manish Kumar. On 16.03.2011 accused Kalu was sent to J/C. Thereafter, on 17.03.2011, the then SHO i.e. PW-13/Insp. N.S. Rana moved an application seeking police remand of accused Kalu and he was granted police remand for one day. After taking custody of Kalu, when they came out of the court building, then one of the victims Vijay/PW-1 met PW-13 at the gate. PW-1 identified accused Kalu as the same person, who had robbed him along with other person.
16.On the other hand, it was so suggested to PW-6 that on 17.03.2011 he had identified Kalu at the gate of Karkardooma Court. None of these witnesses deposed that after police remand of Kalu, his face was muffled. None of the witnesses deposed that TIP of this accused was ever applied for. It is also not the case of prosecution that either PW-1 or PW-6 knew accused Kalu since prior to the alleged incident. In that situation, the alleged identification of Kalu either by PW-1 or PW-6 at the gate of Karkardooma Court was not an example of correct practice. The contradiction regarding the person, who identified accused Kalu on 17.03.2011 is another glaring lacunae in the evidence of prosecution. In contradiction to the case projected by prosecution, PW-13 stated that it was Vijay i.e. PW-1 who had identified Kalu. Thus, the identification of (Pulastya Pramachala) Page no. 11 of 13 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.24/11 PS : Nand Nagri Kalu by PW-1 before the Court is insignificant and cannot be given any weightage.
17.Another important aspect of the case relates to omission of the IO to obtain ownership proof of the mobile phone of complainant/PW-1, which was allegedly robbed. IO placed on the record CAF and CDR pertaining to mobile no.9818462983. This was not the connection number being used by complainant/PW-1. The initial IO i.e. PW-10 deposed that he had kept the mobile number of complainant on surveillance. PW-12/SI Manish deposed that he obtained the ownership document of robbed mobile phone i.e. 9818462983, however, this investigation of SI Manish Kumar was mis directed because the given number was not pertaining to the robbed mobile phone, rather it was the connection obtained by one Kailash Jain, who was known to the JCL Anuj, in whose possession the mobile phone was allegedly found by the police. There is no evidence on the record to connect the mobile phone, which was allegedly recovered in this case with the complainant. Neither there is any ownership document nor is there any CDR proved on record, to show the connection number of complainant being used on mobile phone set having same IMEI number, as pertaining to the recovered mobile phone. Apart from this mobile phone nothing else was recovered by the police.
DECISION :-
18. In view of my foregoing discussions and appreciation of evidence, I find that the evidence placed by the prosecution do not prove the charges framed against both accused Kalu and Avinash beyond doubts. It is also worth to mention here that the prosecution evidence is totally silent (Pulastya Pramachala) Page no. 12 of 13 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.24/11 PS : Nand Nagri in respect of the person, who had allegedly used knife, so as to invoke Section 397 IPC. In these circumstances, both the accused persons are acquitted of all the charges.
File be consigned to record room.
Announced in the open court (PULASTYA PRAMACHALA)
today on 16.10.2015 Additional Sessions Judge (Shahdara),
(This judgment contains 13 pages) Karkardooma Courts, Delhi
(Pulastya Pramachala)
Page no. 13 of 13 ASJ (Shahdara)
Karkardooma Courts / Delhi