Delhi District Court
Sc No. 202/17 Fir No. 988/16 P.S. Knk Marg ... vs . Vinit Page No. 1 Of 13 on 16 March, 2018
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IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE02, NORTH
ROHINI COURTS, DELHI
STATE CASE No........................................... 202/17
FIR No. 988/16
PS : KNK MARG
U/s : 392/394/397/411/34 IPC
State
Versus
Vinit
S/o. Sh. Jagresh
R/o. VPO Bhadoli, PS Kithor,
District Meerut, U.P.
Date of institution: 15.04.2017
Judgment reserved on: 08.03.2018
Judgment delivered on: 16.03.2018
ORDER/JUDGMENT: The accused is acquitted of the offence(s)
u/S. 392 & 394 r/w. 397/34 IPC, whereas, he
stands convicted u/S. 411 IPC.
J U D G M E N T
1.Brief facts, as stated in the chargesheet are that on 25.11.2016, on receipt of DD No. 40A, SI L. N. Saini along with Ct. Amit reached at the spot i.e. KNK Marg, Delhi, Near Sector11, Red Light, where it was revealed that the injured had been shifted to hospital. Thereafter, the above police officials reached at Saroj Hospital, where the injured SC No. 202/17 FIR No. 988/16 P.S. KNK Marg State Vs. Vinit Page No. 1 of 13 -2- Gagan was found in the hospital with the injuries, who was found fit for the statement, who made the following statement to IO, SI L. N. Saini as under:
"That he was doing the work of denting and painting of the vehicles on 25.11.2016 he was going in his car bearing no. DL5CK8021 white colour Swift towards his house. When he reached at the red light of Sector11, at around 10:30 pm and after taking turn towards KNK Marg, he after parking his car on the side of the road started talking to his brother Sanjay, suddenly two persons came from behind aged around 18 to 20 years and started grappling with him after opening the door of his car. One of the person was having some sharp thing in his hand with which he attacked him. As a result of which he sustained injuries on his upper lips, left ear and other portion of body and they pulled him out the car and wrestled him to the ground. Thereafter, put the key into his car and drove away with his car, which was having two mobile phones one was of Vodafone SIM no. 9999087210 and another mobile phone Jio SIM no. 8076393737 and he could SC No. 202/17 FIR No. 988/16 P.S. KNK Marg State Vs. Vinit Page No. 2 of 13 -3- identify the said persons, if brought before him".
2. On the said statement, endorsement was made by SI L. N. Saini and sent ASI Ramesh Kumar to the police station KNK Marg, who got registered an FIR u/s 392/394/34 IPC at PS KNK Marg.
3. Thereafter, IO inspected the spot and prepared the site plan of the spot at the instance of complainant/injured Gagan. Thereafter, efforts were made to search the accused, but all in vain. Thereafter, investigations were handed over to SI Ram Kumar and on 13.01.2017 a DD No. 28B was received by SI Ram Kumar that AATS/RD had arrested one Vinit S/o. Jagresh u/S. 41(1)(d) CrPC along with JCL 'H', who was also arrested in FIR No. 988/16 u/s 392/394/34 IPC.
Thereafter, the said SI reached JJB and formally apprehended JCL 'H' and inquiry was done from him. Thereafter, the accused Vinit was arrested after taking formal permission from the court of Ld. MM. During investigations, the photocopies of the kalandras u/s 41.1(d) and 102 Cr.P.C. were obtained by the IO. Case properties were handed over to the superdar. During investigations, both accused as well as JCL refused to undergo TIP. The nature of injuries as per the MLC of injured was found to be grievous. Consequently, Section 397 IPC was added.
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4. After completion of investigation(s), a charge sheet u/s 392/394/397/411/34 IPC was filed in the court of Ld. MM against accused Vinit S/o Jagresh, whereas separate proceedings before the JJB were undertaken against the JLC 'H'.
5. On committal of the case to the Court of Sessions, vide order dated 26.07.2017, a charge(s) u/s 392 & 394 read with Sec. 397/34 & Sec. 411 IPC was framed against the accused Vinit, to which he pleaded not guilty and claimed trial.
6. Thereafter, prosecution in support of its case has examined 6 witnesses :
a) PW1 is Dr. A. K. Rawat, who had prepared the MLC Ex. PW1/A of injured Gagan Sharma and opined the nature of injuries as grievous.
b) PW2 is Dr. S. K. Singh, who on 25.11.2016, examined the injured Gagan Sharma and after examination, referred the patient to Surgery department for further treatment.
c) PW3 is SI Ramesh Kumar, Duty Officer, who had registered the FIR Ex. PW3/A on the basis of rukka sent by SI L. N. Saini through Ct. Amit. He has also proved the endorsement made by him on the rukka vide Ex. PW3/B. He has also proved the certificate u/S. 65B Indian Evidence Act Ex. PW3/C.
d) PW4 is Sh. Gagan Sharma, complainant / victim in this case, who SC No. 202/17 FIR No. 988/16 P.S. KNK Marg State Vs. Vinit Page No. 4 of 13 -5- has deposed about the incident, and has fully supported the prosecution story regarding time, place and the manner of incident, but has turned hostile on the point of identity of the accused. He has correctly identified the mobile phone having the SIM of Jio LYF as Ex. P1, as belonging to him, which he took on superdari and had produced the same in the court. He had also correctly identified the recovered car no. DL5CK8021 as Ex. P2, which he also took on superdari.
e) PW5 is SI Sajjan Pal, who on 12.01.2017 had joined the investigations along with IO/SI Ram Kumar and has deposed about the same during his deposition in the court.
f) PW6 is Inspector L. N. Saini, part IO of this case, who has deposed regarding the investigations as were carried out during the course of the present case.
7. Thereafter, statement of accused u/S 313 Cr.P.C. was recorded in which the entire incriminating evidence appearing against the accused was put to him, in which the defence of the accused was that he had been falsely implicated in the present case. He further stated that all the prosecution witnesses were interested witnesses and had deposed falsely. However, he chose not to lead any evidence in his defence.
8. I have heard Sh. Devender Hora, Ld. Counsel for the accused and Sh. V. K. Negi. Ld. Addl. PP for the State.
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9. Ld. Defence counsel has argued that the only material prosecution witness PW Gagan had turned hostile and had not supported the prosecution story regarding the incident of robbery dated 25.11.2016 and despite being declared hostile, he has not supported the prosecution story. He further submits that the robbed mobile was recovered at the instance of JCL 'R'. He further submits that the recovery of Swift car allegedly at the instance of the present accused does not inspire any confidence, as no public witness was joined in the said recovery proceedings. Therefore, he submits that the prosecution has not been able to make out a case u/S. 392/394/397/34 IPC as well as u/S. 411 IPC. Consequently, the accused is liable to be acquitted.
10. On the other hand, the Ld. Addl. PP for the State has controverted the above arguments and has argued that no doubt PW4 Gagan Sharma, complainant had turned hostile regarding the incident of robbery. However, regarding recovery of Swift car, PW4 has totally supported the prosecution story that the said Swift car was recovered pursuant to the disclosure statement of the present accused at his instance, therefore, he submits that accused is liable to be convicted u/S. 411 IPC.
11. I have gone through the rival contentions.
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12. PW4 Gagan Sharma, complainant, in his testimonial deposition before the court has stated as under :
"I am residing at the aforesaid address alongwith my family and running my shop of denting and painting of vehicles at Sector-7, Rohini. On 25.11.2016, I was going to my house from my shop in car no. DL-5CK-8021 white colour Swift. At about 10:30 pm, after turning from the red light at Sector-11, Rohini towards KNK Marg, I parked my vehicle on side of the road and made a call to my brother Sanjay and talking with him.
In the meanwhile, two persons came from behind aged about 18 to 20 years came there and they got opened my window and started manhandling with me and they were having a sharp edged weapon and assaulted me on my face, lips and other parts of body and thereafter both of them dragged out me from my vehicle and thereafter they robbed my above vehicle. My two mobile phones were also lying inside the vehicle and one mobile phone was having a Vodafone SIM No. 9999087210 and another mobile phone make Jio company having SIM No. 8076393737. The original documents, my license, keys of shop were also robbed, which were lying inside the vehicle.
SC No. 202/17 FIR No. 988/16 P.S. KNK Marg State Vs. Vinit Page No. 7 of 13 -8- At the spot with the help of some public persons, I made a call to my brother from the mobile phone of public person and thereafter, my brother Sanjay came there and he took me to Dr. BSA Hospital, Rohini and after taking the first aid, I went to Saroj Hospital and I was admitted there.
Someone had called at 100 number. Police came at Saroj Hospital and recorded my statement in this regard. Same was read over and explained to me and after finding it to be the correct I signed the same at point A on Ex. PW4/A, On the basis of my statement, case was got registered. I remained admitted in the hospital for about two days.
After about one month, I was informed by the police that my vehicle and one mobile phone having a Jio SIM was recovered and I got released my vehicle and mobile phone on superdari by the order of court vide superdginama Ex. PW4/B and Ex. PW4/C which bears my signatures at point A. I handed over the receipt of mobile phone and same is Ex. PW4/D bears my signatures at point A. After the discharge from the hospital, I visited the spot alongwith the police and on my pointing out, police inspected the spot and prepared the site plan and thereafter my supplementary statement was recorded by the police in this regard.
SC No. 202/17 FIR No. 988/16 P.S. KNK Marg State Vs. Vinit Page No. 8 of 13 -9- Today I have brought the said mobile phone having the SIM of Jio LYF company having IMEI Nos. 911510450833245 and 911510450833252, which is the same mobile phone, which was robbed on the day of incident, which was lying inside the car. The said mobile phone is Ex. P1.
I have also brought my car no. DL-5CK-8021, which is parked in the court premises, which is the same vehicle, which was robbed from me on the day of incident and the said car is Ex. P2.
The accused was a thin man and having wheatish complexion and they had attacked all of sudden and at that time there was a little bit darkness and I am unable to identify the said person today in the court."
13. The complainant PW4 has not identified the accused as the person who had committed the robbery of the mobile phones and the Swift car from him on 25.11.2016 along with his coaccused (JCL). However, he has identified one of the mobile phone bearing IMEI Nos. 911510450833245 and 911510450833252 as belonging to him, which was robbed on the date of the incident as Ex. P1 and the car bearing no. DL-5CK-8021 as Ex. P2. Though, he has not identified that accused was the one who robbed him along with his co-accused.
14. However, regarding the recovery of car, the prosecution has examined PW5 SI Sajjan Pal, who in his testimonial deposition before the court, has deposed as under :
SC No. 202/17 FIR No. 988/16 P.S. KNK Marg State Vs. Vinit Page No. 9 of 13 -10- "On 12.01.2017, I was posted at PS AATS Rohini, Delhi. On that day, I joined the investigation with SI Ram Kumar as he had received the information that a person namely Vineet would come at Japani Park, Gate no. 2, who had committed the robbery of Swift vehicle. On receiving this information, I alongwith ASI Banny Singh, HC Satyawan and SI Ram Kumar and informer reached gate no. 2, Japani Park, at about 5.30PM.
At about 6.10PM, one person was seen coming at gate no. 2 and on the pointing out of informer the said person was apprehended and interrogated, who disclosed his name as Vineet S/o Sh. Jagresh. Accused Vineet is present in the Court today, correctly identified by the witness. Accused Vineet was arrested u/s 41.1D Cr.P.C vide arrest memo Ex. PW5/A which bears my signature at point A and his personal search was conducted vide memo Ex. PW5/B which also bears my signature at point A. accused was interrogated and he made his disclosure which is Ex. PW5/C which also bears my signature at point A. as per the disclosure of the accused he got recovered one Swift car from, Pocket-5, Sector-5, Rohini and the said car was having without number plate. On checking the car, the engine number was D13A504900 and chasis number was MA3FHEBIS00706334. On verification through zip net, the registration number was found DL 5CK 8021 and in this regard an FIR No. 988/16 was SC No. 202/17 FIR No. 988/16 P.S. KNK Marg State Vs. Vinit Page No. 10 of 13 -11- found to be registered at PS KNK Marg. The said vehicle was taken into possession u/s 102 Cr.P.C vide seizure memo Ex. PW5/D which bears my signature at point A. Accused further disclosed the his associate Hrithik was JCL and the robbed mobile phone was with him. After making the call JCL Hrithik was called at AATS staff office and JCL came there alongwith his father and he was apprehended vide apprehension memo is Ex. PW5/E which bears my signature at point A. from his possession, one mobile phone make Jio lyf was recovered and same was also taken into possession u/s 102 Cr.P.C . Thereafter my statement was recorded by SI Ram Kumar.
SI Ram Kumar prepared kalandra u/s 41.1D Cr.P.C and produced in the Court and information was send to PS KNK Marg. The case property was also deposited in KNK Marg. During the course of investigation my statement was recorded by SI Rakesh Rana.
I can identify the case property i.e mobile phone and car No. DL 5CK 8021, if shown to me.
The identity of mobile phone Ex. P-1 and vehicle no. DL 5CK 8021 Ex. P-2 is not disputed by the Ld. Defence counsel vide order dated 03.02.2018."
15. The said witness has not been crossexamined by the defence despite opportunity. The recovery of the Swift car pursuant to the SC No. 202/17 FIR No. 988/16 P.S. KNK Marg State Vs. Vinit Page No. 11 of 13 -12- disclosure statement of accused dated 12.01.2017 which was made by him in proceedings u/S. 41.1(d) CrPC vide DD No. 12 dated 12.01.2017 before AATS / RD Delhi is relevant u/S. 27 of the Evidence Act and is admissible. The said recovery of the robbed Swift car pursuant to the disclosure statement of the present accused lends credibility to the said disclosure statement by confirmation of facts.
No doubt, no public witness was joined in the said recovery proceedings, however, the same is not fatal to the case of the prosecution, in view of the settled law as held in judgment Sanjay alias Kaka Vs. State of NCT of Delhi AIR 2001 SC 979 wherein it was held as under :
"That no independent witnesses were associated with recovery (discovery) under S. 27 Evidence Act is not sufficient to create doubt regarding truth of prosecution version."
In view of the said judgment the non joining of the public witnesses is not fatal to the prosecution case.
16. Regarding the recovery of the mobile phone Ex. P1, the same was recovered pursuant to the apprehension of the JCL 'H', who was apprehended pursuant to the disclosure statement of the present accused, regarding whom separate proceedings have been initiated before the JJB. The said mobile phone had been identified by the complainant in the court, as belonging to him which is exhibited as Ex. P1. Though, he had sadmitted that there was no specific mark of SC No. 202/17 FIR No. 988/16 P.S. KNK Marg State Vs. Vinit Page No. 12 of 13 -13- identification on his mobile phone except IMEI number. However, the same does not help the case of the accused as the identity of the mobile phone is only known by IMEI number. The accused has not lead any defence evidence as to how he got recovered the stolen / robbed Swift car as well as the arrest of his coaccused JCL 'H' who in turn lead to the recovery of robbed mobile phone nor any explanation has been furnished in this regard in his statement u/S. 313 CrPC. Consequently, from the totality of the evidence discussed above, it is proved beyond any doubt that the accused either dishonestly received or retained the Swift car knowing or having reasons to believe the same to be stolen property.
17. To sum up :
From the aforesaid analysis of evidence, the prosecution has failed to make out a case with regard to charge(s) u/S. 392 & 394 read with Section 397/34 IPC against the accused. Therefore, the accused stands acquitted of the charge(s) u/S. 392 & 394 read with Sec. 397/34 IPC, whereas, the probative force of the prosecution evidence as a whole is touching the point of certainty on the probative scales, with regard to charge(s) u/S. 411 IPC. Consequently, the accused stands convicted u/S. 411 IPC.
Announced in the open Court (Sanjeev Aggarwal) th on this 16 day of March 2018 Addl. Sessions Judge02,North Rohini Courts, Delhi/16.03.2018 SC No. 202/17 FIR No. 988/16 P.S. KNK Marg State Vs. Vinit Page No. 13 of 13