Delhi District Court
State vs Brijesh Kumar on 29 April, 2019
IN THE COURT OF SHRI KULDEEP NARAYAN :
ADDITIONAL SESSIONS JUDGE 04: EAST DISTRICT
KARKARDOOMA COURTS: DELHI
SC No. 533/2017
FIR No. 271/2016
U/s. 392/397/34 IPC
P.S Gandhi Nagar
State
versus
Brijesh Kumar,
S/o Dheer Singh,
R/o Escort Colony,
Near Shiv Mandir, Dadri,
Distt. Gautambudh Nagar, UP.
Date of Institution : 28.07.2017
Date of reserving Judgment : 16.04.2019
Date of pronouncement : 29.04.2019
Appearances
For the State : Shri. Ajit Kumar Shrivastava,
Additional Public Prosecutor.
For accused : Shri Salim Malik, Advocate.
JUDGMENT
1. The accused Brijesh Kumar son of Dheer Singh, aged about 29 years was sent up for trial on the basis of report under Section 173 of Sessions CaseNo.533/2017 . Page 1/16 the Code of Criminal Procedure, 1973 (Cr.P.C) i.e chargesheet, submitted on 11.08.2017 upon conclusion of investigation into First Information Report (FIR) no. 2714/2016 of police station (PS) Gandhi Nagar for the offence punishable under Section 392/397/34 of the Indian Penal Code, 1860 (IPC) and section 25/27 of The Arms Act, 1959.
Prosecution Version
2. The prosecution story, in brief, is that on 22.06.2016, at about 11.05 am, at Post Office Road, near Kali Mata Mandir Chowk, Gandhi Nagar, Delhi, accused Brijesh Kumar alongwith coaccused Ashok and Praveen in furtherance of their common intention committed robbery upon complainant Sushil Goyal of Rs. 7,92,000/ and pass books of PNB and UCO Bank in the names of Sh. Sandeep Goyal and while committing the said robbery accused Brijesh Kumar had used a deadly weapon i.e. a revolver. During investigation accused Praveen was arrested but he could not be identified by the complainant in TIP proceedings and accordingly, accused Praveen was released vide order dated 07.07.2017 by the Ld. Metropolitan Magistrate. Accused Praveen Kumar and Ashok Kumar released in this case by the Ld. M.M. concerned vide orders dated 07.07.2017 and 23.12.2017 respectively.
Sessions CaseNo.533/2017 . Page 2/163. As per the chargesheet, the present FIR No. 271/2016 under Sections 392/397/34 IPC and sections 25/27 Arms Act was registered on 22.06.2016 by HC Kavinder on the statement of Sushil Goel son of Trilok Chand Goel, aged about 32 years, r/o H.No. A49, First Floor, Nirman Vihar, Delhi, who stated that he was residing at the said address with his family and running a business of ladies jeans in the name and style of Sahiba Garments in shop no. 6299, Savitri Gali, Gandhi Nagar. Further, on 22.06.2016, at about 10.45 am he left his home for his shop. He had kept a cloth bag of red and black colour containing Rs. 7,92,000/ in cash and two pass books of PNB & UCO Bank, in his scooty bearing no. DL7SBZ9812. Further, Rs.7,92,000/ consisted of 200 notes of Rs. 1000/ and remaining notes of Rs. 500/ each. When he reached in Postofficewali Gali, Kali Mandir Chowk, Gandhi Nagar, three boys came from behind on an Apache motorcycle. They were wearing helmets. They stopped their motorcycle in front of complainant's scooty and one boy pointed a revolver towards complainant and started abusing him. Another boy also pointed a revolver on complainant and snatched the bag from him. Complainant raised hue and cry, upon which both the boys sat on the said motorcycle and they all ran away from the spot. Further, age of all the boys was between 2530 years. Complainant also noticed that a cartridge was lying on the spot and he made a call at 100 number.
Sessions CaseNo.533/2017 . Page 3/164. Further investigation of the case was handed over to SI Deshraj, the Investigation Officer (IO). During investigation, I.O. recorded the statement of the witnesses and prepared the site plan.
5. After concluding the investigation, the I.O. came to a conclusion that sufficient evidence were collected against the accused Birjesh Kumar qua commission of offence under Section 392/397/34 IPC and 25/27 of Arms Act and thereafter, he prepared chargesheet and filed in the court on 11.08.2017.
6. On the basis of chargesheet and the documents submitted with it, the learned Metropolitan Magistrate (East), Karkardooma Courts took cognizance of offences under Section 392/397/34 IPC & 25/27 Arms Act and after complying with the provisions contained in Section 207 Cr.P.C, vide order dated 24.08.2017 committed the case to the Court of Session for 28.08.2017.
Charge
7. On 21.11.2017, after hearing the learned Additional Public Prosecutor for the State and the counsel for the accused, charge was framed against the accused for commission of offences punishable under Sections 392/397/34 IPC. The charge so framed was read over and explained to the accused to which he did not plead guilty and claimed trial.
Sessions CaseNo.533/2017 . Page 4/16Prosecution Witnesses
8. To bring home the aforementioned charges to the accused, the prosecution got examined ASI Veerbhan Singh (PW1), Sushil Goel (PW2), ASI Kavinder (PW3), SI Nishant (PW4), HC Sovinder Dhaka (PW5), HC Rajpal Singh (PW6) and SI Desh Raj (PW7).
Documentary Evidence
9. The prosecution also relied on following documents tendered into evidence i.e copy of DD No. 17A (Ex. PW1/A), copy of FIR (Ex. PW1/B), endorsement on rukka (Ex. PW1/C), statement of Sushil Goel (Ex. PW2/A), sketch of cartridge (Ex. PW2/B), seizure memo of cartridge (Ex. PW2/C), rukka (Ex. PW3/A), disclosure statement of accused Birjesh Kumar in case FIR No. 185/2017, PS Gandhi Nagar (Ex. PW4/A), arrest memo of accused (Ex. PW5/A), disclosure statement of accused (Ex. PW5/B), site plan (Ex. PW7/A), application seeking issuance of production warrant for accused (Ex. PW7/B), application seeking permission to interrogate the accused (Ex. PW7/C), application for conducting TIP of accused (Ex. PW 7/D), application seeking police custody remand of accused (Ex. PW 7/E), arrest memo of accused Praveen (Ex. PW7/F) and application seeking release of accused Praveen (Ex. PW7/G).
Statement of Accused Sessions CaseNo.533/2017 . Page 5/16
10. After conclusion of prosecution evidence, on 05.03.2019, statement of the accused under Section 313 Cr.P.C was recorded wherein he denied the correctness of all the incriminating circumstances appearing in the evidence against him. He further stated that he has been falsely implicated in this case by the police. Accused did not lead any evidence in his defence.
Final Arguments
11. I heard the arguments advanced by Sh. Ajit Kumar Shrivastava, learned Additional Public Prosecutor for the State and Sh. Salim Malik, learned counsel for the accused. I have also perused the entire material available on record.
12. During the course of arguments, learned Additional Public Prosecutor for State submitted that the PW2 Sushil Goel identified the accused to be the same assailant, who had snatched his bag containing money after pointing out a revolver at him. Further, after arrest, the accused also refused to join the TIP proceedings and therefore adverse inference is to be drawn against him. There are no material contradictions in the testimonies of prosecution witnesses and therefore, prosecution succeeded in proving its case against the accused beyond reasonable doubts.
Sessions CaseNo.533/2017 . Page 6/1613. Per contra, Sh. Salim Malik, learned counsel for the accused argued that the accused has been falsely implicated by the complainant in this case at the instance of the IO to work out the present case. The accused was not present at the spot. He had refused to join the TIP proceedings as he was already shown to the complainant in the police station. Further, many other false cases were also planted upon the accused. Further there are many material contradictions in the testimonies of prosecution witnesses, which raises doubt on the prosecution version. Ld. Counsel for accused lastly argued that the prosecution failed to establish its case beyond all reasonable doubts and accused deserves acquittal.
14. I have given my thoughtful consideration to the submissions of both sides.
15. The accused has been charged with commission of offence punishable u/s 392/397/34 IPC. Section 392 IPC is reproduced as under for ready reference :
392. Punishment for robbery. Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.Sessions CaseNo.533/2017 . Page 7/16
16. Section 397 IPC is also reproduced as under for ready reference :
397. Robbery, or dacoity, with attempt to cause death or grievous hurt. If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with shich such offender shall be punished shall not be less than seven years.
Points for Determination
17. In view of the abovementioned provisions of law and the submissions advanced on both sides, following points for determination are emerging in the present case :
1) Whether the accused committed robbery upon the complainant Sushil Goel on 22.06.2016?
2) If so, whether the accused used deadly weapon while committing the robbery upon the complainant?
Testimonies of Prosecution Witnesses
18. In all, seven witnesses were got examined by the prosecution. For the sake of convenience, the testimonies of all the prosecution witnesses are referred in a tabular form hereunder:
Sessions CaseNo.533/2017 . Page 8/16S.No Name of PW Nature of Testimony Documentary of PW Evidence PW1 ASI Veerbhan Proved copy of DD No. 17A, copy of Ex. PW1/A, Singh FIR and his endorsement on the rukka. Ex. PW1/B (Duty Officer) & Ex. PW1/C PW2 Sushil Goel Deposed about robbery of his Ex.PW2/A, (complainant) Rs.7,92,000/ and two passbooks of Ex.PW2/B PNB & UCO Bank on the point of & pistol by accused Brijesh Kumar Ex. PW2/C. alongwith coaccused persons on 22.06.2016 at about 10.30 am while he was going from his house to his factory.
He further deposed about arrival of police at the spot, recording of his statement, preparation of site plan at his instance and seizure of one cartridge from the spot.
PW3 ASI Kavinder Deposed about his reaching at the spot Ex. PW3/A alongwith Const. Rajpal on receiving DD a call from Duty Officer regarding incident, where complainant met him and produced a cartridge. which was seized after preparing its sketch.
Further, he recorded statement of complainant Sushil Goel, prepared a rukka and handed over to Const. Rajpal for registration of FIR. After registration of FIR, Const. Rajpal reached at the spot alongwith SI Deshraj, who conducted further investigation in this case and having recorded his statement by IO.
PW4 SI Nishant Deposed about disclosure statement of Ex.PW4/A accused in case FIR No. 185/2017 in which he disclosed regarding his involvement in the present case and regarding the same having informed the IO/SI Deshraj.
Sessions CaseNo.533/2017 . Page 9/16PW5 HC Sovinder Deposed about his joining investigation Ex. PW5/A Dhaka with IO/SI Desh Raj and Const. Amit & and having formally arrested the Ex. PW5/B accused after taking permission from the court. He further deposed about taking two days police custody remand of accused and recording of disclosure statmenet of the accused.
PW6 HC Rajpal Deposed about his reaching at the spot Ex. PW6/A Singh alongwith HC Kavinder on receiving DD no.17A, where complainant met and produced a cartridge, which was seized after preparing its sketch. He further deposed about recording of statement of complainant Sushil Goel by IO, prepration of a rukka and his having taken the rukka to police station for registration of FIR. He further deposed about his reaching at spot after registration of FIR alongwith SI Desh Raj, who conducted further investigation in this case, prepared site plan at the instance of complainat and having recorded his statement by IO.
PW7 SI Desh Raj Deposed about the investigation Ex. PW7/A, (Investigating conducted by him after registration of Ex. PW7/B, Officer) FIR. Ex. PW7/C, Ex. PW7/D, Ex.PW7/E, Ex. PW7/F & Ex. PW7/G. ANALYSIS :
19. In order to prove its case prosecution has examined 7 witnesses in all. The case of the prosecution is predicated upon the testimony of Sushil Goel (PW2), who deposed that on 22.06.2016 at about 10.30 Sessions CaseNo.533/2017 . Page 10/16 am he proceeded to his shop from his house carrying a cloth bag containing cash amount of Rs. 7,92,000/ alongwith one bank pass book in the name of his father and another passbook in the name of his brother. PW2 was on his scooty and had reached Kali Mandir, Gandhi Nagar, when three persons on a motorbike make "Apachi" came from the side of Pushta and stopped in front of him. One of those persons came to him and pointed pistol towards him while abusing. Another person sitting on the bike also came to him and snatched his cloth bag. PW2 raised hue and cry, consequent to which lot of people gathered there but no one dared to intervene as the assailants were carrying pistols. PW2 was also threatened with his life if he tried to chase them. PW2 further deposed that one of the assailants also tried to fire from the pistol but the cartridge fell on the ground and thereafter the assailants sped away on their bike. PW2 then made a call to the police. He further deposed that all the three assailants were wearing the helmets but their glass shield were broken and he could see their faces. PW2 identified the accused Brijesh Kumar, present in the court, to be the same assailant, who had come near to him secondly, pointed out the revolver and snatched the cloth bag from him. PW2 also proved his statement Ex. PW2/A recorded by the police.
20. In crossexamination PW2 stated that at the relevant time many shops were open when he had reached at Kali Mata Mandir. Further, Sessions CaseNo.533/2017 . Page 11/16 the police officials had seen CCTV camera installed in one house. PW2 had also called his father after the incident, who had arrived at the spot almost simultaneously with the police. PW2 had also given the description of the assailants to the three police officials, who were also preparing the sketch of the assailants. On further cross examination, PW2 stated that he had visited the police station after two days of the incident and thereafter 3 or 4 times to inquire about the status of the case. He further stated that one of the helmets worn by the assailants was not having the glass shield. He has also seen the accused in police station on one occassion but he could not remember the date.
21. A perusal of testimony of ASI Kavinder (PW3), HC Rajpal Singh (PW6) and SI Deshraj (PW7) would reveal that there are certain material contradictions when their testimonies are compared with each other. Their testimonies also contradict the testimony of PW2 on certain aspects.
22. Both PW3 and PW6 had reached at the spot on receipt of information about the incident where Sushil Goel (PW2) met them. As per the testimony of PW3 he reached at the spot on his private motor cycle with PW6 whereas PW6 stated that he reached the spot on his own motor cycle with PW3. Further PW3 stated that no family memebr of the complianant had reached at the spot till he conducted Sessions CaseNo.533/2017 . Page 12/16 investigation and left the spot around 02.45 pm, whereas PW2 had deposed that his father had arrived at the spot simultaneously with the police. SI Desh Raj (PW7) had also reached at the spot around 02.30 pm on that day. He also deposed that no family member of the complainant was present there. Then, PW3 deposed that no CCTV cameras were observed near the spot, whereas PW6 categorically deposed that PW3 had checked CCTV camera installed there. As observed above, PW2 had also deposed that the CCTV cameras installed in one house were seen by the police. Furthermore, as per the testimony of PW2one cartridge of the assailants had fallen down on the ground which he had handed over to the police and sketch (Ex. PW2/B) of the catridge was also prepared. PW3 also deposed that the sketch of cartidge was prepared on a white papers by placing the cartridge on it. During crossexamination PW3 admitted that the size of the cartridge produced in the court was longer than the one shown in sketch. He also deposed that it was PW6 who procured one match box from nearby shop for putting the cartridge into it and for preparing a pullanda. On further crossexamination PW3 stated that PW6 had brought the match box from nearby shop within 10 minutes and he had destoryed the match sticks of the match box. PW6 on the other hand deposed that the match box in which the live cartridge was kept, was taken by the IO from one of the public persons present there. No such fact was deposed by SI Desh Raj (PW7). He further deposed that no Sessions CaseNo.533/2017 . Page 13/16 CCTV cameras were installed near the spot and some residential houses and shops were situated ahead of the spot.
23. As far as the identity of the accused to be one of the assailants, who had robbed PW2, is concerned, PW2 deposed that he had given description of the assailants to the police, who were preparing their sketch, whereas SI Desh Raj (PW7) deposed that no particulars of the assailants were provided by the complainant PW2. Even PW2 initially deposed that all the three assailants were wearing the helmets with broken glass shield and he could see their faces, in crossexamination PW2 stated that one of the helmets worn by the assailants was without glass shield. He further stated that he had seen the accused in the police station on one occassion. The testimony of SI Desh Raj (PW7) is categorical in this regard when he deposed that the complainant had visited the police station when accused was in police custody and the complainant had identified the accused in the police station upon which his supplementary statement was also recorded.
24. It is worthy to note here that the accused was initially arrested by SI Nishant (PW4) in case FIR No. 185/17, PS Gandhi Nagar, whereupon he made disclosure statement about the present case consequent upon which an application Ex. PW7/B was moved before the court concerned for production of the accused and on such production the accused was interrogated and arrested vide arrest memo Sessions CaseNo.533/2017 . Page 14/16 Ex. PW5/A with the permission of the court. The accused had also refused to take part in TIP proceedings. Another accused namely Praveen, who was running in JC in case FIR no. 185/17, PS Gandhi Nagar, was also produced before the court on application produced by PW7, who was interrogated and arrested vide memo Ex. PW7/F. During the TIP proceedings, the complainant could not identify him, hence, PW7 moved an application Ex. PW7/G for release of accused Praveen. Similarly another accused namely Ashok, who had surrendered before the court concerned, was also interrogated and arrested but during TIP proceedings the complainant again failed to identify him resulting in PW7 moving application for his release also.
25. Taking the entire facts and circumstances into consideration, in my considered opinion, there are material contradications in the testimonies of PW3, PW6 and PW7 regarding the proceedings conducted at the spot, which raises doubt on the prosecution version. The identification of the accused by PW2 while deposing in the court is also of no significance when admittedly he had identified the accused in police station itself. The testimony of PW2 about the assailats wearing helmets with broken glass shields also does not appeal to common sense. PW2 further improved upon his version to say that one of the helmets was not having the glass shield, which again raises doubt on his credibility. On the whole a reasonable doubt Sessions CaseNo.533/2017 . Page 15/16 has arisen in the entire prosuection story, benefit of which is to be given to the accused.
26. Accordingly, I extend the benefit of doubt to the accused Brijesh Kumar. Accused Brijesh Kumar son of Dheer Singh stands acquitted of the charge qua commission of offences punishable u/s 392/397/34 IPC.
27. Points for determination no. 1 and 2 are decided accordingly.
File be consigned to record room after due compliance.
KULDEEP order
Digitally signed by KULDEEP NARAYAN
Location: East District Karkardooma
NARAYAN Courts, Delhi
Date: 2019.05.01 16:44:56 +0530
(Pronounced in the open (Kuldeep Narayan)
Court on 29th April, 2019). Addl. Sessions Judge 04 (East)
Court No. 10: Karkardooma Courts
Delhi
Sessions CaseNo.533/2017 . Page 16/16