Delhi District Court
State vs . Amit Bhardwaj & Anr on 16 December, 2021
IN THE COURT OF SH. PRANAT KUMAR JOSHI, METROPOLITAN
MAGISTRATE, DWARKA COURTS, NEW DELHI.
FIR No. 298/13
PS. Dwarka North
U/s. 379/356/34 IPC
State Vs. Amit Bhardwaj & Anr
JUDGMENT
A. SL. NO. OF THE CASE : 422453/16.
B. DATE OF INSTITUTION : 01/11/2013.
C. DATE OF OFFENCE : 29/08/2013.
D. NAME OF THE : Sh. Anita Sikander
COMPLAINANT S/o Sh. M. A Sikander.
E. NAME OF THE : (1) Amit Bhardwaj S/o Sh.
Govind Bhardwaj R/o House
No. 22, Vipin Garden, Uttam
Nagar, New Delhi. (He has
already been acquitted vide
order dated 28.09.2019.)
(2) Roshan @ Chela S/o Sh.
Udai Shankar R/o G57,
Bajaj Enclave, Patel Garden,
Kakrola, New Delhi
F. OFFENCE
COMPLAINED OF : 356/379/34 IPC
G. PLEA OF ACCUSED : Pleaded not guilty.
H. FINAL ORDER : Acquittal.
I. DATE OF SUCH ORDER : 16.12.2021.
FIR No. 298/13.
PS. Dwarka North.
U/s. 356/379/34 IPC
State Vs. Amit Bharadwaj & Anr
Page No. 1/12
Brief Statement of Reasons for Decision
1. Briefly stated the facts of the case, as alleged by the prosecution and as stated in the charge sheet are that on 29.08.2013 at around 09:00 PM opposite Gate no. 2, Antriksh Apartment, Sector4, Dwarka, New Delhi, both the accused persons in furtherance of their common intention had used criminal force against the complainant Ms. Anita Sikander in order to snatch her hand bag containing her debit card and cash of Rs. 2,000/ to Rs. 3,000/, ID card and DL which she was carrying. During the course of investigation, the both the accused persons were apprehended, the statement of witnesses were recorded, site plan was prepared and other steps were taken towards the completion of investigation. Accused Roshan @ Chela was got discharged by the IO as complainant had not identified him in the TIP proceedings. On conclusion of the investigation, the challan under section 356/379/34 IPC against the accused Amit Bharadwaj was filed in the court.
2. Thereafter, the accused Amit Bharadwaj was summoned by this court for facing trial under the aforesaid sections. In compliance of Section 207 CrPC, the copy of the challan and the documents annexed therewith were supplied to the accused. Prima facie charge under section 356/379/34 IPC was made out against the accused Amit Bhardwaj and on 19.11.2013 the charge was framed against him by this court. The accused FIR No. 298/13.
PS. Dwarka North.
U/s. 356/379/34 IPC State Vs. Amit Bharadwaj & Anr Page No. 2/12 pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for recording of prosecution evidence. During the recording of PW1 she had identified accused Roshan who was appearing, in the court in another in case FIR No. 290/13 on 10.01.2014, as the pillion rider of the motorcycle which was being driven by accused Amit Bharadwaj on the date of incident. Accordingly, vide order dated 04.03.2014 the suspect/ accused Roshan @ Chela was arrested in the court and on 18.03.2014 charge for the offences under section 356/379/34 IPC was also framed against him and matter again proceeded for recording of prosecution evidence.
3. In the instant case, the prosecution has examined seven witnesses in support of its case.
4. PW1 Ms. Anita Sikandar had deposed that on 29.08.2013 at about 9:00 PM, she alongwith her daughter namely Shafali was coming back to her house from the side of DPS while they were crossing the road in front of Gate No. 2 of their Apartments, at that time, one motorcycle which came from their back side and two persons were sitting on the same; one of them snatched her purse which contained her employee I card, medical card, two credit cards, one mobile phone make E73, Nokia, one Titan wrist watch and cash around Rs. 2,500/; she had seen the accused persons while they were snatching her purse; however, she had FIR No. 298/13.
PS. Dwarka North.
U/s. 356/379/34 IPC State Vs. Amit Bharadwaj & Anr Page No. 3/12 seen them from behind; witness correctly identified the accused persons in the court; somebody had called the police at 100 number; police arrived at the spot and she had given the complaint to the police which is Ex.PW1/A; she had shown the place of incident to the IO who prepared the site plan at her instance; she was called to Tihar jail for TIP of accused Roshan but she was unable to identify him as the accused was only shown from the front side.
5. PW1 Anita Sikander after framing of charge against accused Roshan @ Chela was again examined; she deposed on the lines of her deposition recorded on 10.01.2014. She also deposed that at the time of incident accused Amit was driving the motorcycle and accused Roshan was riding pillion; she correctly identified both the accused persons; her bag was snatched by accused Roshan @ Chela; her neighbour made a call at 100 number; police reached the spot; her statement recorded by the police is Ex.PW1/A; site plan prepared at her instance is Ex.PW1/B; after the incident she had gone to Tihar Jail for participating in the TIP proceedings; accused Amit refused to join the TIP proceedings and she had asked the Ld. MM that she can identify the accused from the back and the side portion as she had seen him from left and back side. In her cross examination she stated that there was darkness at the time of incident and voluntarily deposed that lights were on near the gate of Antriksh FIR No. 298/13.
PS. Dwarka North.
U/s. 356/379/34 IPC State Vs. Amit Bharadwaj & Anr Page No. 4/12 Apartments and Shri Ram Apartments; she did not note down the number of motorcycle as there was no number plate nor she stated the make of the motorcycle to the IO; she voluntarily deposed that she can identify the make of the car but is not conversant with the makes of motorcycle and she can identify the motorcycle in question from its sound; the site plan Ex.PW1/B was not prepared at her instance then she again said that it was not prepared at her presence but was prepared as told by her; she was shown six persons in the TIP proceedings of Roshan @ Chela and had seen those six persons properly; she had seen those six persons only from front side; this witness was not cross examined on behalf of accused Amit Bharadwaj.
6. The testimony of PW2 ASI Ramesh Chand and PW3 Ct.
Ratnesh Kumar remains unrebutted as these witnesses were not cross examined on behalf of accused persons.
7. PW4 ASI Bajrang Lal deposed that on 03.09.2013 he had recorded the disclosure statements of both the accused persons which are Mark X and Mark Y respectively as they were arrested in case FIR No. 290/13; ASI Jai Singh IO of the present case, collected the disclosure statement and recorded his statements; copy of disclosure statement of accused Amit and Roshan are Ex.PW4/A (OSR) and Ex.PW4/B (OSR) respectively. In his cross examination of behalf of accused Roshan @ Chela he deposed FIR No. 298/13.
PS. Dwarka North.
U/s. 356/379/34 IPC State Vs. Amit Bharadwaj & Anr Page No. 5/12 that he had not given any notice to public persons to join the investigation nor any public person was part of the investigation in case FIR No. 290/13. The cross examination conducted on behalf of accused Roshan @ Chela was adopted by accused Amit Bharadwaj.
8. PW5 HC Pratap Singh have majorly deposed on the lines of PW4; however, he also deposed that he joined the investigation of the present with IO/ASI Jai Singh on 04.09.2013 and arrested both the accused persons vide arrest memos Ex.PW5/A and Ex.PW5/B respectively; he correctly identified both the accused persons. In his cross examination on behalf of accused Roshan @ Chela he deposed that the accused persons had disclosed their involvement in 1516 cases; no public person was made part of the proceedings; nothing was recovered from the possession of the accused persons or at their instance. The cross examination conducted on behalf of accused Roshan @ Chela was adopted by accused Amit Bharadwaj.
9. PW6 Ct. Kishan deposed that on 28.08.2013 on receipt of DD No. 29 PP he alongwith ASI Jai Singh reached the spot and met the complainant; complainant gave her written complaint to the IO; on the basis of complaint IO prepared and handed over the rukka to him for getting the FIR registered; he went to PS alongwith rukka and got the case FIR registered; thereafter he FIR No. 298/13.
PS. Dwarka North.
U/s. 356/379/34 IPC State Vs. Amit Bharadwaj & Anr Page No. 6/12 came back at the spot with the copy of FIR and rukka and handed over the same to IO/ASI Jai Singh. In his cross examination conducted on behalf of accused Roshan @ Chela he deposed that no public person agreed to join the investigation nor any public person was found at the spot who had witnessed the incident; nobody could tell the registration number of the motorcycle despite their sincere efforts; IO did not collected the CCTV footage in their presence; however, the accused persons could not be seen any CCTV footage.
10. PW7 ASI Jai Singh is the IO of the present case majorly deposed about the investigation conducted by him; rukka is Ex.PW7/A; application seeking TIP of the accused persons is Ex.PW7/B; complainant failed to identify accused Roshan @ Chela in TIP proceedings whereas accused Amit Bharadwaj had refused to participate in the TIP proceedings.
11. In his cross examination he deposed that daughter of the complainant namely Ms. Shefali was not made a witness in the present case nor he had any reasons to explain as to why she was not made a witness; he do not know as to whether any TIP of the case property was conducted or not; he denied that Shefali had not seen the assailants during the incident; no TIP proceedings qua the accused persons was conducted through Shefali; he does not remember as to whether he recorded any statement of Shefali.
FIR No. 298/13.
PS. Dwarka North.
U/s. 356/379/34 IPC State Vs. Amit Bharadwaj & Anr Page No. 7/12
12. In their statements recorded under Section 294 CrPC r/w 313 CrPC and r/w section 281 CrPC both the accused persons namely Rohit @ Roshan and Amit Bharadwaj admitted the genuineness of TIP proceedings as Ex.P/A/1 to Ex.P/A/2 respectively.
13. After examination of all the PWs, PE was closed and statement of the accused under section 313 CrPC read with 281 CrPC was recorded on 31.03.2015. In the said statement all the incriminating evidence against the accused persons were put to them for their explanation. Both the accused persons stated that this is a false case and the witnesses have deposed falsely. Moreover, they are innocent. They stated that they do not want to lead defence evidence. Thereafter matter was listed for addressing of final arguments. However, vide order dated 20.01.2017 accused persons were given an opportunity to cross examine PW1 and PW7 by Ld. District & Session Judge, South West. Thereafter, PW 7 was crossexamined on 18.05.2017. PW1 remained unserved and therefore, PE was closed finally on 29.07.2019 without further examining PW1. However, during that time accused Roshan @ Chela absented himself and accordingly he was declared PO vide order dated 09.05.2019. The charge u/s 174A IPC was not framed upon the accused Roshan @ Chela. Hence, he was not tried for that offence. The accused chose not to lead DE and his SA was already recorded on 31.03.2015.
FIR No. 298/13.
PS. Dwarka North.
U/s. 356/379/34 IPC State Vs. Amit Bharadwaj & Anr Page No. 8/12
14. Thereafter matter was listed for addressing of final arguments. Final arguments in the matter were heard.
15. Cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. Burden of proving guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. Benefit of doubt, if any, must go in favour of the accused.
16. In order to prove the guilt of the accused under section 356/379/34 IPC the prosecution is required to prove that the accused in furtherance of his common intention alongwith co accused had used the criminal force upon the complainant in order to commit theft of his gold chain which he was wearing at the time of incident.
17. In the instant case, this court has no hesitation to say that the testimony of PW1/ complainant is full of material contradictions and embellishments. PW1 during the TIP proceedings conducted at Tihar jail had failed to identify accused Roshan @ Chela. However, during the court proceedings when accused Roshan @ Chela was appearing in another case FIR No. 290/13 she identified him as the culprit in the present incident. Interestingly she deposed that she could have identified accused persons from their back and side portion but there is FIR No. 298/13.
PS. Dwarka North.
U/s. 356/379/34 IPC State Vs. Amit Bharadwaj & Anr Page No. 9/12 nothing on record to suggest that she had made that request to the Ld. MM who had conducted the TIP proceedings. This witness is unworthy of credit and requires to be disbelieved for the reason that she could not identify the motorcycle of the accused persons as she is not aware of the makes of the motorcycle. However, she can identify the same from the sound of the motorcycle. Again nothing has come on record which could suggest that complainant is a special trainer working in the area of sound so as to believe she could identify the motorcycle from its sound. It is again unbelievable to assume that a person with whom an offence has taken place within a span of friction of seconds would be able to identify the culprits from their built and that too from the back side and more specifically would be able to tell the role of each accused during the incident.
18. Moreover, the daughter of complainant was not examined by IO for the reasons best known to him. In the absence of any public witness including the daughter of complainant the version of the investigating agency remained uncorroborated by an independent material witness. The witnesses those were examined by the prosecution in the present case are police witnesses and the complainant who are interested in the success of the prosecution case and therefore, the probability of them being guided by the extraneous factors, other than truth, cannot be ruled out. Though, the testimony of the police witnesses and FIR No. 298/13.
PS. Dwarka North.
U/s. 356/379/34 IPC State Vs. Amit Bharadwaj & Anr Page No. 10/12 the complainant cannot be straightaway termed as unreliable, however, when there is a possibility of joining any public witness in the investigation and still no genuine efforts are made to join the independent person as witness, then the testimony of the police witness does not lend sufficient credence/reliability, unless it is corroborated by independent material witness. In view of above discussion, it is duly established that genuine efforts were not made by the IO of the case to join the public witness. The non joining of the public witness creates doubt in the story of the prosecution as held in Pawan Kumar Vs. Delhi Administration reported as 1987 CC 585 DELHI HC.
19. In view of the fact that there are material improvements and embellishments in the testimony of PW1/ complainant and also the fact that public witnesses including the daughter of complainant were not joined in the investigation, the prosecution has failed to prove its case against the accused beyond reasonable doubt. Resultantly, the accused Roshan @ Chela is acquitted of the offence, he was charged with.
ANNOUNCED IN OPEN COURT (PRANAT KUMAR JOSHI) TODAY i.e., 16.12.2021 MM06/SWD/DWARKA COURT, NEW DELHI FIR No. 298/13.
PS. Dwarka North.
U/s. 356/379/34 IPC State Vs. Amit Bharadwaj & Anr Page No. 11/12