Delhi District Court
State vs . Suresh @ Naresh & Anr. on 1 September, 2022
IN THE COURT OF SHRI SHUBHAM DEVADIYA,
METROPOLITAN MAGISTRATE-05, WEST DISTRICT,
TIS HAZARI COURTS, DELHI
FIR No. 122/2020
PS Anand Parbat
Cr. Case No. 2716/2020
State Vs. Suresh @ Naresh & Anr.
CNR No. DLWT02-005545-2020
JUDGMENT
(a) Sr. No. of the case 2716/2020 (b) Date of offence 19.05.2020 (c) Complainant Vinod (d) Accused persons Suresh @ Naresh and Sajan @ Rohit (e) Offences U/s 392/411/34 IPC (f) Plea of accused Pleaded not guilty (g) Final Order Acquittal (h) Date of institution 30.07.2020 (i) Date of judgment 01.09.2022 BRIEF FACTS AND REASONS FOR DECISION
1. The case of prosecution is that on 19.05.2020 at about 9:00 P.M. at near Kamal Hotel, near Kamal T Point Red Light, New rohtak Road, Anand Parbat, Delhi both accused committed robbery by snatching Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.09.01 17:52:53 +0530 FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 1 of 38 PS Anand Parbat mobile phone of complainant Vinod by holding him from behind. Alternatively, accused persons were found in possession of above mobile phone which accused dishonestly received or retained knowing or having reason to believe it to be a stolen property.
2. After investigation, Chargesheet were filed in the Court for commission of offences under Section 392/411/34 IPC. Cognizance of the matter was taken and there upon compliance of Section 207 Cr.P.C was completed and charges for offences punishable under Section 392/411/34 IPC were framed against accused on 18.02.2021 to which they pleaded not guilty and claimed trial. The accused persons admitted the genuineness of FIR alongwith certificate u/s 65B of Indian Evidence Act and DD No. 80A dt. 19.05.2020 u/s 294 CrPC. Thereafter, the matter proceeded for prosecution evidence accordingly.
3. In prosecution evidence, the prosecution has examined 10 witnesses. The testimony of the witnesses in a nutshell are as below:
PW1 Sh. Vinod Kumar: He deposed that he does not remember the exact date and month of the incident, however, the same happened at around 9:00 p.m in the year 2020. On that day he was coming from his job and when he reached near Kamal Hotel there was one Shiv Mandir, two boys, who were already walking ahead him and suddenly they turned back and one of the well built boy caught hold of his mouth and neck and FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 2 of 38 PS Anand Parbat in the meanwhile the other boy (Patla Ladka) snatched/robbed his mobile phone and removed the SIM Card from the mobile phone and threw it away. Thereafter they both ran away. PW1 correctly identified both the accused persons, who were present in the Court. He further deposed that after the incident, he went to his room and informed his friends regarding said incident, who suggested him to go at the spot and call at 100 number. Thereafter, PW-1 called at 100 number after reaching the spot from the phone of his friend. It is further stated that after some time Police officials came at the spot and took him to the police station, where PW-1 gave his statement Ex.PW-1/A to SI Amit. Subsequent to which, FIR was registered. It is further stated that SI Amit told him to bring the box and bill of the mobile phone. On the next day, PW-1 along with phone bill in the name of Rakesh Gupta i.e. employer of PW-1 and box went to the police station and handed over the same to SI Amit. The phone bill is Ex.PW-1/C. It is further staed that both accused persons were arrested in his presence on his identification after some days of incident vide arrest memos Ex. PW-1/D and PW-1/E respectively. It is further stated by PW-1 that both accused persons were personally searched in his presence. PW1 could not recall as to whether site plan was prepared in his presence or not. However, when PW-1 was shown the site plan, he stated that the same was prepared in his presence. The witness correctly identified the case property i.e. photographs of the mobile phone as Ex. PW-1/B(Colly.) (04 in number).
FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 3 of 38 PS Anand Parbat PW-1 was cross-examined on behalf of Ld. APP for state after seeking permission as the witness was resiling from his previous statement regarding date and month of incident. During cross- examination by Ld. APP for State, it witness admitted to be correct that the incident took place on 19.05.2020. PW-1 could not recall the date when the accused persons were arrested. He admitted it to be correct that he accompanied the police officials in order to apprehend the accused persons.
During cross-examination on behalf of accused persons, it is stated by PW-1 that in the year 2020, he used to work with Sh. Sanjay and used to make Mobile Charger. He used to leave for work from his home at 10:00 a.m. and come back around 9:00 p.m., alone. There was no attendance register. PW-1 could not recall on which day, the incident took place. It is stated that the distance of the place of incident from the factory was around 300 mtrs. It is stated by the witness that there was no street light "Lekin wahan par ujala tha". The said reflection/light was coming out from the temple. PW-1 could not tell the timings of opening and closing of temple. It is stated that nobody was present in the temple. It is stated that he was coming on foot. It is stated that he did not know the accused persons before the day of incident and he had never seen accused before incident. He could not recall what cloths accused were wearing at the time of incident. It is stated that the accused caught hold of him from back. The witness deposed that he did not resist the accused persons as he was not in a position to free himself, as accused persons FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 4 of 38 PS Anand Parbat had caught hold of his neck and mouth. The accused persons robbed his phone, removed the SIM and pushed him back and ran away. PW-1 picked up the SIM. The witness deposed that he was using VIVO S-1 and his mobile no. was/is 9667206838 and 8920861098. The witness deposed that no one was present at the spot. The distance of place of incident from his house was 300 mtrs. The witness deposed that his room was situated at Punjabi Basti, Anand Parbat and he still lives at the same place. It is stated that he lived alone in the room. It was voluntarily submitted by the witness that the building in which his room was situated was four storey building consisting of four floors. The witness deposed that he borrowed the phone from one of his friends named love Kush, who resides at some distance away from building. PW-1 could not recall the phone number of his friend Love Kush. After borrowing the phone from his friend, PW1 along with his friend went to the spot and made a call at 100 number. The police officials did not enquire from his friend. Thereafter, one police official took him to the police station. The site plan was prepared at the spot. PW-1 could not recall the date and time when the site plan was prepared. The witness deposed that he was called by the police officials to accompany them in search operation of accused persons. PW-1 could not recall the date and time when he was called by police officials. PW-1 was alone. The accused persons were arrested in Gali no. 11, Military Road while they were going somewhere. Accused persons did not run away as they were apprehended from behind. PW-1 could not tell the name of accused from whom the mobile phone was recovered. However, FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 5 of 38 PS Anand Parbat PW-1 pointed out towards the accused Sajan and stated that he was the one from whom the mobile phone was recovered. PW-1 could not tell from which pocket (left or right), the phone was recovered. Police officials called PW-1 several times in the police station during investigation. Police officials recorded his statement 2-3 times.
PW-1 denied that he was not present on the spot on the date of incident or that the accused person did not catch hold of his neck or that he did not pick the SIM from the spot or that the accused persons did not rob/snatch his mobile phone or that there was dark or that he did not visit his friend or that he did not narrate him about the incident happened with him or that his friend did not accompany him or that he deposed falsely against accused persons. PW-1 further denied that writing work was done in the police station or that accused persons were not apprehended in his presence or that the accused persons are not the same persons who were present at the spot. PW-1 could not tell the date and time of arrest of the accused persons.
PW2 Sh. Rakesh Gupta. He deposed that he makes mobile chargers and he has given one mobile phone make VIVO S-1 to Sh. Vinod, who was his employee at the time of the incident. PW-2 correctly identified the photographs (04 in numbers) of mobile phone and stated that it is the same mobile phone which was given by him to Vinod. The witness deposed that he purchased the aforesaid mobile phone from the J.K. Electronics. PW-2 also identified the tax invoice of the said mobile FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 6 of 38 PS Anand Parbat phone, already Ex.PW-1/C. It is further stated by PW-2 that he got the aforesaid phone released on superdari from the Court vide superdarinama Ex. PW-2/A. During cross-examination on behalf fo accused persons, witness stated that he is the sole proprietor. Vinod used to work with him as an employee before the Lockdown. PW-2 admitted it to be correct that lockdown was announced Nationwide on 23.03.2020. After lockdown his business was shutdown. He could nto recall when he purchased the aforementioned mobile phone and its IMEI number. It is stated that on the date of incident, Vinod came to him and he told that his phone was snatched. PW-2 could not recall the date when Vinod came to him. He could not recall the date of incident. It is stated that Vinod was not working with him on the date of incident. He could not recall the month or year or date when he gave mobile phone to his employee Vinod. It is stated that he did not give the invoice of the phone to Vinod along with the phone. It is stated that he had given invoice of the phone to Vinod after said incident, however, he could not recall the date, time and year when he gave invoice and box of the phone to Sh. Vinod. It is denied by the witness that Vinod never worked with him. It is denied by the witness he never gave mobile phone to Vinod or that police never recorded his statement.
PW3 ASI Sheo Narain. He deposed that on 19.05.2020, he was posted at PS Anand Parbat as HC. On that day, copy of FIR of the present case was FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 7 of 38 PS Anand Parbat handed over to him by the Duty Officer. Thereafter, he alongwith the complainant Vinod Kumar reached at the spot i.e. near Kamal T point Red Light, New Rohtak Road. Thereafter, he prepared site plan at the instance of complainant which is Ex.PW3/A. It is further stated that thereafter, he made search of the accused but all efforts went in vain. I recorded the statement of the witnesses. It is stated that during investigation, the complainant also handed over bill of mobile phone to him. It is further stated that on 22.05.2020, he alongwith Const. Naveen were present near Bus Stop No. 212, Anand Parbat, where they met the complainant. It is stated that they also met one secret informer who told them that 02 persons wanted in the present case would come to sell mobile phone in Gali No. 11, Military Road, near CNG Pump, near Titu Gym, Anand Parbat, Delhi. Thereafter, they proceeded towards Gali No. 11, Military Road, Anand Parbat alongwith secret informer. Secret informer pointed out towards 02 persons and told that they are the same persons who had come to sell the mobile phones. In the meantime, HC Damodar also reached at the spot. Thereafter, they apprehended accused persons. The witness deposed that on interrogation, they revealed their names as Suresh @ Naresh and Sajan. The accused persons were personally searched after getting the identification done from the complainant. The stolen mobile phone was recovered from possession of accused Suresh @ Naresh. Thereafter, PW-3 prepared seizure memo of mobile phone which is Ex.PW3/B, recorded disclosure statement of both accused persons which are Ex.PW3/C and Ex.PW3/D and accused was FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 8 of 38 PS Anand Parbat personally searched and arrested vide memos Ex.PW1/D and Ex.PW1/E. The witness deposed that the seizure memos were got signed by the witnesses. Thereafter, PW3 recorded the statements of the witnesses. Thereafter, both accused persons were sent to hospital for medical examination and the case property was deposited in the malkhana. Thereafter, both accused persons were sent to lock up. It is stated that on the next day, both accused persons were produced before the Court and from there, they were sent to judicial custody. Thereafter, PW-3 returned back to PS Anand Parbat and recorded the statement of witnesses. It is stated that on 10.07.2020, he got transferred and thereafter, the present case file was handed over to someone else for investigation. PW-3 correctly identified the accused persons present in the Court.PW-3 correctly identified 04 photographs of case property stating that the mobile phone shown in the photographs is the same mobile phone which was recovered from accused Suresh @ Naresh. Case property is already Ex.P-1.
During cross-examination on behalf of accused persons, it is stated by the witness that he was posted at PS Anand Parbat from 2014 to 2020. On 19.05.2020 his duty hours were from 8:00 A.M. to 11:00 P.M. (late night). It is further stated that he was informed about this case for the first time by Duty Officer at about 10:40 P.M. It is stated that he met the complainant of this case first time at about 11:45 PM at the spot. T is further stated that the distance between the spot and PS was around one kilometer. The witness deposed that he went to the spot from the PS on FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 9 of 38 PS Anand Parbat his own motorcycle. When he reached at the spot alongwith Const. Ram Kishore they met SI Amit and complainant Vinod at the spot. No person except the four i.e. SI Amit, complainant, me and Const. Ram Kishore were present at the spot. The witness deposed that PW-3 had prepared site plan on 19.05.2020 at around 11:50 P.M. After preparation of said site plan no changes were ever made. PW-3 admitted it to be correct that there was a street light at the spot and the same was working. It is stated that the case property i.e. phone was owned by the complainant Vinod and the phone belonged to the company namely Vivo S1 Oppo sky blue colour. The witness further deposed that he asked about the bill of the said phone from the complainant and the same was produced by the complainant at the spot itself and handed over to him then and there. The witness deposed that PW-3 had seen the bill and the same was in the name of complainant Vinod. After 03 days starting from the date of registration of FIR, PW-3 arrested Suresh and Sajan from Gali No. 11, Military Road, near Titu gym, Than Singh Nagar. There was no public witness at the time of arrest of accused persons except the complainant. The time of arrest was 7:00 P.M. PW-3 could not recall the colour of clothes which accused persons were wearing. When PW-3 was arresting the accused persons they never tried to escape. It is stated that Mobile phone was recovered from accused Suresh. It is stated that he had never given the notice to the complainant to reach at the place of arrest. People were passing from the place where accused persons were arrested. It is stated that he asked the public persons to join the investigation but none FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 10 of 38 PS Anand Parbat agreed and went away. No notice was issued to any person for joining the investigation. Phone was recovered from the possession of accused Suresh at the place where he was arrested. It is further stated that he had recorded the disclosure statement of both accused persons at the place of arrest. The phone which was recovered from accused Suresh was seized but never sealed. It was voluntarily stated by the witness that the complainant was asking for release of phone on superdari that is the only reason why PW-3 not sealed the same. It is further stated that accused was straight away taken for medical examination to Lady Harding Medical College from the place of arrest by Const. Damodar and Const. Naveen. However, PW-3 remained at the place of arrest alongwith complainant. It is stated that he had collected the medical documents from the hospital and placed on case diary. It is further stated that he has prepared the pointing out memo at the instance of accused persons. PW-3 admitted it to be correct that site plan Ex.PW3/A was prepared by him. When attention of witness was drawn towards site plan Ex.PW3/A and he was asked whether the site plan bears the signatures of Const. Ram Kishore, witness submitted that the site plan Ex.PW3/A does not bear the signature of Const. Ram Kishore. When attention of witness was drawn towards the mobile bill already Ex.PW1/C and he was asked whether the bill is in the name of complainant, witness submitted that the mobile bill is not in the name of complainant Vinod Kumar and the same is in the name of one Rakesh Gupta. It is further stated by the witness that he had recorded the statement of complainant two times. He denied the FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 11 of 38 PS Anand Parbat suggestion that he had not carried out the investigation properly or that site plan was prepared by him in the PS or that mobile phone was not recovered from accused Suresh or that he is deposing falsely.
PW4 Sh. Jagdish Kumar. He deposed that he deals in sale and purchase of mobile phones and run a shop in the name of J.K. Electronics at 48/13, Gali No. 10, Nai Basti, Anand Parbat, Delhi. On 28.12.2019, one Rakesh Gupta had purchased mobile phone make Vivo S1 (4GB + 128 GB) having IMEI No. 860959047381310 and 860959047381302 from my shop in the amount of Rs.15,990/- vide Bill / Invoice No. 4026 already Ex.PW1/C. During cross-examination on behalf of accused persons, it is admitted to be correct by the witness that there is a column of address in the bill book of my shop. It is also admitted to be correct by the witness that he had not taken the address of Sh. Rakesh Gupta who had purchased mobile phone from his shop. Rakesh Gupta had purchased mobile phone from his shop by cash. It was voluntarily submitted that he cannot recall exactly whether the mode of payment was cash or online. It is further stated that he does not know anything about the present case. The witness denied the suggestion that he had not sold any mobile phone to Rakesh Gupta.
FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 12 of 38 PS Anand Parbat PW5 Const. Naveen. He deposed that on 22.05.2020, he was posted at PS Anand Parbat as Const. On that day, he alongwith ASI Sheo Narain were on patrolling duty and while patrolling when they reached at Bus Stop No. 212, Anand Parbat, they met the secret informer, who informed that the two persons who were involved in phone snatching at Kamal T- Point, near Mandir would come to dispose of the said phone at Gali No. 11, Military Road, near Titu Gym, Anand Parbat, Delhi. Thereafter, ASI Sheo Narain gave information to the concerned SHO and thereafter, ASI Sheo Narain called HC Damodar to come. In the meantime, they also met the complainant. Thereafter, they all proceeded towards Gali No. 11, Military Road, Anand Parbat, Delhi. Thereafter, they apprehended both accused persons namely Suresh @ Naresh and Sajan. The witness had stated that he knew both accused persons prior to the incident as both are actively involved in the crime in that area. Thereafter, accused persons were personally searched and one mobile phone was recovered from accused Suresh @ Naresh from the right pocket of his wearing pant. The phone was Vivo company S1 sky blue colour. On seeing the phone, complainant identified the same and thereafter, the same was seized vide seizure memo already Ex.PW3/B. It is further stated that thereafter, both accused persons were arrested and personally searched vide memos Ex.PW1/D and Ex.PW1/E. Thereafter, accused persons were got medically examined at Lady Hardinge Medical College by him and HC Damodar. After medical examination, accused persons were taken to PS and handed over to ASI Sheo Narain. This witness correctly identfied FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 13 of 38 PS Anand Parbat both the accused persons. This witness correclty identified the photographs of the case property stating that mobile phone shown in the photographs is the same mobile phone which was recovered from accused Suresh @ Naresh. Case property is already Ex.P-1.
During cross-examination on behalf of accused persons, it is stated by witness that he does not know the mobile number of the complainant. The day on which accused was arrested, he had not called the complainant. IO had not called any secret informer in his presence. The secret informer informed them about the presence of accused at around 6:15 P.M. It is stated that he cannot tell exactly how many persons were present but it was around 10-15 persons. It was voluntarily stated that persons were passing from there. IO had asked 2-3 persons to stop at the place where the accused was arrested and said 2-3 persons stopped at the instance of IO. Public persons gathered at the place where accused was arrested. It is stated that he does not know whether IO had given any notice to those persons to join investigation or not or whether IO had called the persons from Titu Gym. The witness stated that he did not know as to the IO had called any person from Titu Gym. It is stated that he remained at the spot for about one hour. It is stated that IO had made some documents in his presence. Around 10-11 documents were prepared by the IO at the spot. PW-5 could not recall on how many documents he had signed as a witness but as far as he recalled, he signed on the documents as a witness where the requirement of witness was necessary. It is stated that IO had prepared arrest memo, personal search memo, FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 14 of 38 PS Anand Parbat seizure memo, disclosure statement, MLC proforma and some other documents regarding the case i.e. statements of HC Damodar and complainant. Except these documents, no other documents were prepared at the place where accused persons were arrested. It is stated that accused persons did not try to run away from the place where they were apprehended. It is further stated that they were 03 persons i.e. PW-5, IO and HC Damodar and one other person i.e. complainant. Accused Suresh was apprehended by him and accused Sajan was apprehended by HC Damodar. Personal search of both accused persons were conducted by IO ASI Sheo Narain. The recovered phone was not sealed by the IO. They remained at the spot for about one and a half hour after the arrest of accused persons. After the arrest of accused persons, they took them straightaway to hospital for medical examination. PW-5 could not recall the colour of the wearing pants of Suresh. PW-5 denied the suggestions that he was not part of the investigation at any point of time or that accused persons were arrested and personally searched in the police station itself or that IO had obtained his signatures on documents in the police station itself or that IO had prepared pointing out memo at the spot or that nothing was recovered from the accused or that he is deposing falsely.
PW6 Retd. SI Usman Ali. He deposed that on 29.06.2020, he was posted at PS Anand Parbat as SI. On that day, the present case was marked to him after scrutiny of file from Prosecution Department. During FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 15 of 38 PS Anand Parbat investigation, he examined Rakesh Gupta who had purchased the mobile phone from one Jagdish Prasad. It is stated that he recorded the statement of Rakesh Gupta u/s 161 CrPC. Thereafter, he also examined Jagdish Prasad and recorded his statement u/s 161 CrPC on 24.07.2020. Thereafter, he concluded the investigation and submitted the chargesheet before the Court. This witness correctly identified both the accused persons.
During cross-examination, it is stated by PW-6 that the file was marked to him by the SHO concerned. It is stated that he had not recorded the statement of earlier IO ASI Sheo Narain. It is stated that he had recorded the statement of Sh. Rakesh Gupta in PS and the statement of Mr. Jagdish Prasad at his shop situated in the name of J.K. Electronics, Gadodia Road. He could not recall the shop number of Jagdish Prasad. He could not recall to whom the shops belongs which are adjacent to the shop of Jagdish Prasad. He could not recall the work done by the adjacent shopkeepers. It is stated that he had recorded statements of both the persons on 24.07.2020. He could not recall exact time when he had recorded the statement of Rakesh Gupta and Jagdish Prasad. He denied the suggestion that he had not recorded the statements of any of the witnesses.
PW7 SI Amit Kumar. He deposed that on 19.05.2020, while being posted at PS Anand Parbat as Sub Inspector, he received DD entry No. 80A for investigation. Thereafter, he alongwith Const. Ram Kishore FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 16 of 38 PS Anand Parbat reached at the spot i.e. near Kamal T Point red light, New Rohtak Road, Delhi, where they met the complainant Vinod. It is stated that he recorded his statement Ex.PW1/A. It is stated that he made endorsement on rukka which is Ex.PW7/A and handed over the same to Const. Ram Kishore for registration of FIR. Accordingly, Const. Ram Kishore left the spot and went to PS Anand Parbat for registration of FIR. After sometime, ASI Sheo Narain alongwith Const. Ram Kishore reached at the spot. Thereafter, PW-7 handed over the complainant to ASI Sheo Narain. After that, PW-7 left the spot as further investigation was marked to ASI Sheo Narain.
During cross-examination on behalf of accused persons, it is stated by the witness that on the day of incident, he was on emergency duty from 8:00 P.M. to 8:00 A.M. It is stated that ehy reached at the spot on motorcycle. PW-7 could not recall the registration number of the said motorcycle. When they reached at the spot, only the complainant Vinod was found present. It was dark at the spot and there was a temple, house and hotel near the spot. It is further stated that had inquired from the public persons passing from there but no one knows about the incident. He had not inquired from the owner of the houses or hotel situated near the spot. He had written the statement of the complainant while standing. He had asked the complainant as to how he had called at number 100 but he did not tell. Complainant had stated in his complaint that the accused had taken out the SIM and throw near the spot somewhere. It is further stated that he had tried to search the SIM but could not find. Complainant FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 17 of 38 PS Anand Parbat was standing with him at the time when Const. Ram Kishore left PS for registration of FIR. It is correct that ASI Sheo Narain met the complainant at the spot firstly. PW-7 could not recall whether CCTV cameras were installed near the place of incident or not or that on which date IO had recorded his statement u/s 161 CrPC it might be on the next day. PW-7 denied the suggestion that accused was falsely implicated in the present case or that he is deposing falsely or that he had not recorded the statement of the complainant or had never been at the spot.
PW8 Const. Pramod. He deposed that on 23.05.2020, while being posted at PS Anand Parbat as Constable, he alongwith ASI Sheo Narain and one other Constable took out the accused persons Suresh @ Naresh and Sajan @ Rohit from lock up and took them to Kamla Market for their dossier. After getting their dossier done, both accused persons were produced in Tihar Jail Complex before Ld. Magistrate and from there, they were sent to judicial custody. In this regard, IO recorded his statement. This witness correctly identified both the accused persons.
During cross-examination on behalf of accused persons, it was stated by the witness that he could not recall about his duty hours on 23.05.2020. Accused persons were taken to Kamla Market for their dossiers at about 2:00 P.M. They reached at Tihar Jail Complex at around 3-3:30 P.M. PW-8 could not recall the colour of the clothes which the accused persons were wearing at that time or that whether they were wearing shoes or slippers. Accused Suresh @ Naresh was in his custody.
FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 18 of 38 PS Anand Parbat It is further stated that they took the accused persons in government tempo make Tata 407. His statement was recorded by the IO on the same day. PW-8 denied the suggestion that accused persons were not taken to Kamla Market for the dossiers or that he was not part of the investigation at any point of time.
PW9 Const. Ram Kishore. He deposed that on 19.05.2020, he was posted at PS Anand Parbat as Const. On that day he was on emergency duty alongwith SI Amit. On that day, DD No. 80A regarding phone snatching was marked to SI Amit for investigation. They reached at the spot i.e. Kamal Hotel, Kamal T point Red Light, New Rohtak Road, Gali No. 11, where they met complainant namely Vinod S/o Sh. Ram Kripal at the spot. SI Amit recorded his statement. SI Amit prepared tehrir and handed over same to PW-9 for registration of FIR. Accordingly, PW-9 left the spot and went to PS Anand Parbat for registration of FIR. After getting FIR registered, PW-9 handed over copy of FIR and original tehrir to ASI Sheo Narain for further investigation. Thereafter, PW-9 alongwith ASI Sheo Narain returned to the spot. Thereafter, ASI Sheo Narain had some talks with SI Amit and complainant. After sometime, SI Amit left the spot. ASI Sheo Narain had inquired from the complainant. IO ASI Sheo Narain also prepared site plan at the spot. ASI Sheo Narain had checked CCTV cameras but no CCTV camera found installed at the place of incident. They made search of accused persons but could not find anyone. IO had recorded his statement.
FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 19 of 38 PS Anand Parbat During cross-examination, it is stated by PW-9 that his statement was recorded by the IO in the PS. PW-9 admitted it to be correct that IO had recorded his statement u/s 161 CrPC. It is correct that he had stated in his statement u/s 161 CrPC that IO had recorded his statement at the spot only. There was street light installed at the place of incident but he could not recall whether it was working or not. There was no friend of complainant present at the spot when they reached there. PW-9 could not recall whether any friend of complainant came at the spot or not. The place of incident was a semi residential area. IO had inquired from the nearby owners of the shops. PW-9 could nto recall how many public persons were inquired by IO with regard to the incident or that whether IO had recorded statement of any public person except complainant at the spot. It is stated that no public witness came at the spot in his presence. It is stated that complainant had not visited the police station alongwith him. IO had met the complainant at the spot for the first time. IO had not prepared site plan in his presence. It was voluntarily submitted by PW-9 that he was present at the spot but he had not seen the IO preparing site plan but he knowd it was prepared by IO at the spot or that whether the complainant handed over his mobile phone bill to the IO or not at the spot. (When attension of the witness was drawn towards his statement u/s 161 CrPC and was asked whether he had stated in his statement that the complainant had handed over mobile phone bill to the IO at the spot. On seeing the statement, witness submits that it is correct that complainant had handed over the mobile phone bill FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 20 of 38 PS Anand Parbat to the IO at the spot). PW-9 denied the suggestion that he was not part of the investigation or that he is deposing falsely.
PW10 ASI Damodar Waghmare: He deposed that on 22.05.2020, he was posted at PS Anand Parbat as HC. On that day, ASI Sheo Narain called him and asked to come at Bus Stand No. 212, Anand Parbat, Delhi. He reached at Bus Stand No. 212, Anand Parbat at about 6:15 P.M. Thereafter, ASI Sheo Narain shared secret information with him that 2 persons involved in phone snatching at Kamal T point near Mandir would come to dispose off the said phone at Gali No. 11, Military Road, near Titu Gym, Anand Parbat, Delhi. Thereafter, They proceeded towards Gali No. 11, Military Road, Near Titu Gym, Anand Parbat, Delhi. They apprehended both accused persons namely Suresh @ Naresh and Sajan. It is stated that he knew the accused persons prior to the incident as both were actively involved in the crime in that area. Thereafter, accused persons personally searched and one mobile phone was recovered from the right pocket of wearing pant from accused Suresh @ Naresh. The phone was of Vivo company. On seeing the phone, the complainant who was also with us, identified the same. Mobile phone was seized vide seizure memo Ex.PW3/B. Thereafter, both accused were arrested vide arrest memos Ex.PW1/D and Ex.PW1/E. Thereafter, both accused were got medically examined by him and Const. Naveen. This witness correctly identified the accused persons.
FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 21 of 38 PS Anand Parbat During cross-examination on behalf of accused persons, it is stated by the witness that on 22.05.2020, his duty timings were from 8:00 A.M. to 10:00 P.M. When he was present alongwith Const. Naveen on Bus Stand No. 212, he received call from ASI Sheo Narain, who informed him that they have to apprehend one accused who is wanted in a case. The witness could not recall the DD entry through which he left the PS for duty. There was a gym near the place where accused was apprehended. Public persons were passing from there. PW-10 could not recall whether any CCTV camera was installed near the spot or not. It is stated that IO did not serve any notice to any public person in his presence. No public person was called from the gym and nearby area to join the investigation in his presence. Accused persons were trying to run away from the spot. Accused Suresh was apprehended by PW-10. Accused Sajan was apprehended by Const. Naveen. The recovered phone was put in one cloth and thereafter seized. As far as PW-1 could recall, the case property was sealed with the seal of APRVT. It is stated that he could not recall the exact seal. It is stated that he cannot tell the descriptions of the clothes which the accused persons were wearing. He had not signed any blank documents. Information about the arrest of accused persons namely Suresh and Sajan were given to their mother or father. All the documents i.e. arrest memo, statements of witnesses, disclosure statements and other relevant documents were prepared by the IO in the PS in his presence. At the time when they reached at the spot accused persons were coming towards Kamal Hotel. Witness denied the FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 22 of 38 PS Anand Parbat suggestion that he is deposing falsely or that accused was falsely implicated in the present case or that nothing was recovered from accused persons or that the case property is planted upon them to implicate them in this false case or that he was not part of the investigation at any point of time.
4. No other PW was examined by prosecution. Thereafter, statement of accused u/s 313 CrPC was recorded on 06.04.2022. Accused denied all the allegations against him. He stated that he has been falsely implicated in the present case. Accused opted not to lead defence evidence.
5. This Court has carefully perused the case record and have heard arguments advanced by Ld. APP for the State as well as by Ld. Defence Counsel. Ld. APP for state has argued that eye witness/victim has supported the prosecution and his testimony has remained unrebutted. That the testimonies of all the prosecution witnesses have been consistent and that on a combined reading of the same the offences u/s 392/34 and 174A IPC are proved beyond reasonable doubt. Per contra, Ld. Defence Counsel submitted that prosecution failed to prove the charges against accused. He submitted that no independent witness was examined by prosecution to prove the allegation against accused. He further submitted that testimony of complainant is not reliable and trustworthy as complainant is an interested witness and he has falsely implicated accused due to some previous quarrel. He further submitted that accused FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 23 of 38 PS Anand Parbat Sameer had not snatched the mobile of the complainant and the same is admitted by the complainant in his cross examination. He then submitted that the accused Sameer was merely standing at the place of incident and he did not commit any offence as alleged against him. He submitted that no recovery has been affected from the possession of the accused Sameer and the prosecution has therefore not been able to prove the case against him and the accused Sameer deserves acquittal from the present case.
ANALYSIS , APPRECIATION OF EVIDENCE AND FINDING
6. Before proceeding with the appreciation of evidences, it is imperative to refer the definition of the offences charged against the accused persons. For better understanding section 392,411 r/w 34 IPC are reproduced as follow:
390. Robbery. - In all robbery there is either theft or extortion.
When theft is robbery. - Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
34. Acts done by several persons in furtherance of common intention. When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 24 of 38 PS Anand Parbat
411. Dishonestly receiving stolen property. --Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
7. In a criminal case, prosecution is required to prove the case beyond reasonable doubt. Punishment of an accused person on the basis of suspicion alone has been held to be not permissible. Suspicion cannot give probative value to testimony which in itself is insufficient to establish or justify an inference of a particular fact. It is a settled proposition of criminal law that prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence which inspires confidence into the story of the prosecution. In order to prove its case, prosecution is supposed to stand on its own legs and it cannot drive any benefit, whatsoever, from the weakness, if any, in the defense of the accused. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and its never shifts to the accused and the accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubts entitles the accused to acquittal.
8. In order to bring charge under the section 392/34 IPC, the prosecution was supposed to bring home the following ingredients-:
FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 25 of 38 PS Anand Parbat When the offender voluntarily causes or attempts to cause:
o Death, wrongful restraint or hurt; or o Fear of instant death, instant wrongful restraint or instant hurt.
And the above act(s) is done-:
o In order of committing the theft;
o While committing theft;
o While carrying away the property obtained by theft; or o While attempting to carry away property obtained by theft.
In addition to the above ingredients, the prosecution had to prove that the accused persons committed the offence of robbery in furtherance of common intention of each other.
Further, in order to prove the charges under section 411 IPC the prosecution had to prove that the accused persons had dishonestly received or retained stolen property, with intention or reasons to believe or knowledge that it's a stolen property, and that the property was recovered from the possession of the accused persons.
FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 26 of 38 PS Anand Parbat
9. In the case in hand, PW1 has categorically stated in his examination in chief, that in the year 2020 at around 9:00 PM, two persons who were walking ahead of him suddenly turned back and one of the well built boy caught hold of his mouth and neck, and the other boy(patla ladka) snatched/robbed his mobile phone, removed the sim cards and threw the same at the spot. Thereafter, it is deposed that both the accused persons ran away, the complainant correctly identified the accused persons who were present in the court. The complainant further deposed that he had called the police officials at 100 number and made a complaint of the alleged incident which is Ex. PW1/A, the investigation then started in the present case, the complainant then deposed that on the next day of incident he had given the phone bill in the name of Sh.
Rakesh Gupta to the IO SI Amit of the case which is Ex.PW1/C. The complainant further deposed that both the accused persons were arrested at his instance and in his presence, he correctly identified his signature on the arrest memos of both accused persons which is Ex.PW1/D and PW1/E. The complainant further deposed that the accused persons were searched in his presence and he identified his signatures on the search FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 27 of 38 PS Anand Parbat memos of the both the accused persons. the complainant then identified the case property which is EX. PW1/B(colly.). The complainant was then cross examined by the Ld. APP and then the witness answered in affirmative to the leading question of the date of incident which is 19.05.2020.
The complainant was then cross examined by the Ld. LAC of the accused persons who duly cross examined the said witness and raised certain material contradictions which are discussed in the later part of this judgment.
10. The Ld. LAC had argued that from the perusal of the examination in chief of the complainant/PW1, and his statement which is Ex.PW1/A some material contradictions have appeared, as the complainant has stated two different ways of committing the alleged crime, as the complainant in his complaint which is Ex.PW1/A had stated that on 19.05.2020 he was coming from work and was robbed at a temple near Kamal hotel by two persons, one of whom had caught his neck from behind and the other accused had snatched his mobile phone make vivo FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 28 of 38 PS Anand Parbat and then ran away after committing the said crime, whereas the complainant/PW1 in his chief examination states that the accused persons were walking ahead of him and thereafter, one of the accused caught hold of his mouth and the other accused had snatched his mobile phone.
Further he argued that the complainant had in his cross examination deposed that the alleged recovery of the case property i.e., mobile phone was effected from the possession of accused Sajan@Rohit, whereas on the perusal of the seizure memo which is Ex.PW3/A, the alleged recovery of the mobile phone is stated to have been effected from the possession of the accused Suresh@Naresh and the complainant Vinod Kumar was also a witness to the alleged recovery of the mobile phone.
Therefore, the Ld. LAC argued that the that are clear contradictions in the story of the prosecution as the complainant has not been consistent in his testimony and accordingly, he submitted that the testimony of PW1/complainant cannot be relied upon. The prosecution has argued that the said contradictions in the testimony of the PW1/complainant is only a minor contradiction and has occurred owing to passage of time and FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 29 of 38 PS Anand Parbat therefore, as argued by the Ld. APP, is not a material consideration for testing the testimony of PW1.
11. From the perusal of the examination in chief of PW1/complainant Sh. Vinod Kumar and his statement which is Ex.PW1/A, the testimony of the complainant appears to be different from that of his complaint, as the complainant in his complaint Ex-PW1/A had stated two different ways of the alleged incident therefore, the manner of commission of alleged crime could not be corroborated. Moreover, the complainant has failed to corroborate the fact of seizure of mobile phone and has wrongly identified accused Sajan as the person from whose possession the recovery of snatched mobile phone has been effected which further casts doubt on the reliability of testimony of the complainant/PW1. The collective reading of the complaint Ex.PW1/A as well as the examination in chief of the complainant provides two version of the prosecution story.
The testimony of the complainant appears to be inconsistent and unreliable as he has not been able to corroborate the story of the prosecution in a clear, cogent and specific terms. Accordingly, for want of consistency and considering the fact that the complainant/PW1 has not FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 30 of 38 PS Anand Parbat corroborated the fact of recovery, the testimony of complainant/PW1 is being discarded for above discussed reasoning.
12. The prosecution then PW2 Sh. Rakesh Gupta and PW4 Sh. Jagdish Kumar who deposed on the lines of proving the ownership of the snatched mobile phone and have supported the case of the prosecution, the said witnesses were duly cross examined. Nothing contradictory could be found in the cross examination of the said witnesses. PW6 deposed that he recorded the statement of PW2 Sh. Rakesh Gupta and submitted the chargesheet in the court and was duly cross examined.
PW7 then deposed that he received the DD entry 80A for investigation and after doing so he later handed over the case to PW3 ASI Sheo Narain, he was duly cross examined by the accused persons. PW8 deposed that he produced the accused persons before the concerned Magistrate and then the accused persons were sent to judicial custody.
PW9 deposed that on 19.05.2020 he was on emergency duty and went to the spot with PW7 and deposed on lines of prosecution story, he was duly cross examined by both the accused persons.
FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 31 of 38 PS Anand Parbat
13. The prosecution then examined PW3 who is the 1st IO of the present case. The said witness corroborated the case of the prosecution and deposed on the lines of the story of the prosecution. He deposed that he recorded the statement of the complainant/PW1, prepared other documents and after conducting the investigation, he met one secret informer and arrested the accused on 22.05.2020 at the instance of the complainant and thereafter, recovered the alleged stolen mobile phone from the possession of accused Suresh@Sajan and proved the fact of the seizure memo which is EX.PW3/B and other documents as discussed in his testimony reproduced in the above part of this judgment. The said witness correctly identified the accused persons and the case property of the present case which is EX.P-1. The said witness was duly cross examined by the Ld. LAC of the accused persons.
The prosecution argued that the said witness has been able to corroborate the case of the prosecution and is therefore a reliable and material witness against the accused persons. The Ld. LAC had argued that the said witness is a police official and has falsely implicated the accused persons.
he further argued that when the prime witness of the case i.e. complainant FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 32 of 38 PS Anand Parbat himself has not been able to corroborate the manner of committing the crime as well as the fact of recovery, therefore the testimony of PW3 who is a formal witness can not be sufficient enough to corroborate the case of the prosecution. He further argued that the said witness has not made any departure or arrival entry in the Daily Diary and therefore the absence of the same cast a doubt on the fact of arrest of accused persons. He further argued that PW3 deposed that complainant had handed over the bill of the mobile phone at the spot itself, however the complainant/PW1 has deposed that he handed over the bill of the alleged stolen mobile phone on next day to one SI Amit who is PW7 in the present case. He further argued that PW3 in his cross examination has alleged case property was although seized from accused Suresh but the same could not be sealed as the complainant had insisted on releasing the same on superdari, which is a superficial explanation and leaves a doubt on the veracity of the recovery and accordingly he argued that the testimony of PW3 is not consistent and is not reliable in the present case as there is sufficient cloud over his testimony and chance of accused being implicated in the present case cannot be ruled out. This court finds substance in the FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 33 of 38 PS Anand Parbat argument of the Ld. LAC as the testimony of PW3 appears to be inconsistent with respect to the to the aspect of recovery of alleged stolen case property and to the fact of handing over of the mobile bill. Further the absence of departure and arrival entry as well as the non sealing of the case property also cast doubt on the fact of recovery of the alleged stolen property and therefore, the testimony of PW3 can not be relied without corroboration from independent witnesses which in the present case is only PW1, PW2 and PW4 who have themselves not been able to corroborate the case of the prosecution in a clear and cogent manner.
14. The prosecution then examined PW5 to PW10 who all deposed and supported the case of the prosecution. The said witnesses were duly cross examined. The prosecution argued that the testimony of PW5 to PW10 have been consistent and is therefore reliable, whereas the Ld. LAC argued that the said witnesses are formal and police witnesses and has deposed falsely in order to implicate the accused persons. the Ld. LAC pointed out that during cross examination of the PW5 and PW10 had admitted that they both knew the accused persons from before as they both are actively involved in crime in that area. Further, Ld. LAC FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 34 of 38 PS Anand Parbat pointed out that the PW5 admitted that he apprehended the accused Suresh, whereas PW10 admitted that he apprehended the accused Suresh, hence he argued that the testimony of the said witnesses is inconsistent and therefore, cannot be trusted as the chance of false implication of accused persons becomes stronger with their deposition. He further argued that deposition of PW6 to PW9 is merely formal in nature and that in itself is not sufficient enough to support the case of the prosecution.
This court finds substance with the argument of the Ld. LAC and does not find the testimony of PW5 and PW10 reliable as they both have been inconsistent with respect to material facts and circumstances of the case as has been discussed in the aforesaid paragraphs and moreover, their admission regarding knowing the accused persons from before further casts a doubt on their bias against the accused persons and is therefore being discarded for the sake of contradictions pointed out by the Ld. LAC. Further, the testimony of PW6 to PW9 is merely formal in nature and they, although, have supported the case of prosecution but that FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 35 of 38 PS Anand Parbat in itself is not sufficient enough to make a case against the accused persons.
15. The collective reading of the complaint as well as the examination in chief of the complainant provides two version of the prosecution story.
The testimony of the complainant appears to be inconsistent and unreliable as he has not been able to corroborate the story of the prosecution in a clear and specific manner. Moreover, contention of defence that the accused persons have been falsely implicated in the present case cannot be ruled out, because, as per the above discussed testimony of the complainant/PW1, PW3, PW5 and PW10, there are material loopholes and contradiction in the story of the prosecution and is not sufficient enough to bring the charge under section 392 r/w 34 IPC against the accused persons. The prosecution has failed to prove the required ingredients of the alleged offence against the accused persons and therefore, the benefit of doubt in the case of the prosecution has to go to the accused persons.
FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 36 of 38 PS Anand Parbat
16. The testimony of prosecution witnesses namely PW/2, PW/3, PW/4, PW/6, PW/7, PW/8, PW/9 is not sufficient and reliable enough to support the case against the accused Suresh@Naresh and Sajan@Rohit u/s 392/34 IPC. They all are formal witnesses and are not sufficient enough to support the case of the prosecution as the primary witness i.e. PW1 / complainant Sh. Vinod has failed to corroborate the version of the prosecution in a clear and cogent manner and, therefore, casts a serious doubt on the story of the prosecution.
17. Now coming onto the fact of recovery of stolen property from the possession the accused persons. PW1, PW3, PW5 and PW10 are the recovery witnesses in the present case. PW1 is the complainant and is the sole independent witness of recovery, however, as discussed above he has failed to corroborate the fact of recovery of stolen mobile phone as he deposed that the said property was recovered from accused Sajan whereas the alleged property is stated to have been recovered from the possession of accused suresh@naresh, therefore, his testimony becomes unreliable. Further, in the absence of independent witnesses of recovery the testimony of PW3, PW5 and PW10 too becomes unreliable as they too have not deposed in clear and cogent terms and had material contradictions in their deposition. Accordingly, the fact of recovery cannot be said to have been proved against both the accused persons.
FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 37 of 38 PS Anand Parbat
18. In the instant case, the prosecution was supposed to prove that the accused persons, in active participation, had wrongfully restrained the complainant in order to commit the theft of his property i.e., mobile phone, so as to bring the guilt of accused persons u/s 392, 411 r/w 34 IPC. However, the eye witness/complainant in the case has not been able to corroborate the version of the prosecution and has given unreliable testimony. The same has been rebutted by the defence to the level of creating suspicion in the story of persecution, therefore, the testimony of the complainant cannot be relied. As far as the testimony of other prosecution witnesses is concerned, it has already been discussed that those witnesses are formal witnesses and their testimony is not sufficient enough to support the case of the prosecution and since the natural witnesses among them namely PW/5 and PW/10 have not deposed consistently qua the fact of arrest, date of handing over of mobile bill, therefore, their testimony too becomes unreliable. Rest of the prosecution witnesses testimony alone, in my opinion, is not sufficient enough to sustain the charges u/s 392, 411 r/w 34 IPC against the accused persons namely Suresh@Naresh and Sajan@Rohit. Therefore, for the reasons mentioned above, the accused Suresh @ Naresh and Sajan @ Rohit stands acquitted of charges u/s 392, 411 r/w 34 IPC.
Digitally signed by SHUBHAM SHUBHAM
DEVADIYA
DEVADIYA Date: 2022.09.01
17:53:09 +0530
Announced in open Court (Shubham Devadiya)
on 01st day of September 2022 Metropolitan Magistrate
West-05, Delhi
FIR No. 122/2020 State v. Suresh @ Naresh & Anr. 38 of 38
PS Anand Parbat