Delhi District Court
State vs 1. Anil Kumar S/O Mangnu Thakur R/O Vill ... on 25 April, 2014
IN THE COURT OF SH. DINESH BHATT, ASJ07 (CENTRAL)/ TIS
HAZARI COURTS, DELHI
Sessions Case No.:51/14
Unique ID no.:02401R0243992013
State Vs 1. Anil Kumar S/o Mangnu Thakur R/o Vill Bara Udhoran Post Garia
Dumariya Distt. Sarlai PS Malangvar Nepal
2. Sumit S/o Khail R/o Vill Kisumbari PS Sisvan Post Chainpur, Distt.
Sivan Bihar
Case arising out of:
FIR no. : 60/13
Police Station : Pahar Ganj
Under Section : 328/386/379/34 IPC
Date of Institution : 02/07/2013
Date on which order was reserved : 19/04/2014
Date of Decision : 25/04/2014
J U D G M E N T:
1. This is a case U/s 328/386/379/34 IPC.
2. Prosecution's story is that on 20/02/2013 complainant Dev Singh Mehto was going to his village and had boarded Bus no. 33 from Sector 37 for going towards Rajnigandha Chowk from there he boarded Bus no. 335 for New Delhi Railway Station and SC no.:51/14 Page 1/11 got down on the Paharganj side. One person named Manoj also got down from the Bus and told him that he was also travelling to Mujjafarpur and both of them sat in a Rickshaw. Manoj hit complainant with handkerchief on his nose rendering him senseless. Manoj thereafter, took complainant to Uttam Nagar by Bus no. 753. The complainant was left at a Khoka and Manoj continued talking on his phone at this time. The intoxication/senselessness of complainant also started to wane. Manoj called both the accused persons who arrived on the spot. Sumit was told to keep watch on the goods of the complainant while the other accused Manoj and Anil took complainant inside a gali where they under fear of death asked him to hand over all money, mobile phone and ATM card. The same was handed over by the complainant. Complainant was asked about the ATM Pin no. which was disclosed wrongly twice by complainant but then accused started beating him and he was forced to disclose his correct pin no. Accused persons withdrew Rs 50,000/ in denomination of Rs. 10,000/ each per transaction from the ATM on the same day. Complainant filed written complaint on 09/03/2013 with SHO Sector 39 Noida which was registered as Nil FIR on 09/03/2013. The investigation was handed over to SI Dharmender Dahiya who alongwith complainant left for PS Paharganj for delivering the FIR. On reaching New Delhi Railway Station near the toilet, complainant pointed out towards two persons stating that they were the two accused persons namely Anil and Sumit involved in the offence in question. Consequently, Noida Police arrested the said persons and handed over the FIR alongwith the two accused persons to Police officials of Paharganj Police Station. FIR was lodged by Paharganj Police Station and IO investigated the matter and filed challan in the court. Accused Manoj was not traced nor any articles of complainant was recovered.
3. Prosecution examined 06 witnesses. Thereafter, statement U/s 313 Cr. PC was recorded. Accused did not lead any defence evidence.
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4. PW1 complainant stated that on 20/02/2013 he was going towards his native village at Madhubani and had boarded Bus from Greater Noida. On reaching New Delhi Railway Station he got down towards Paharganj side and together with him one person Manoj also got down. He came to know about the name of Manoj as he was talking on his mobile phone as Manoj. Manoj told him that he was also going towards Mujjafarpur. Complainant boarded Rickshaw and Manoj struck handkerchief on his nose as a result, he lost partial consciousness. Manoj took him in Bus no. 753 alongwith his luggage to Uttam Nagar where they got down. Manoj arranged Rickshaw for complainant and also loaded his goods in the same. After covering about 1½ km. They got down and stopped near Khoka and remained there for half an hour. Manoj telephoned and called accused Anil and Sumit. Sumit was told to watch his goods and Manoj alongwith Anil took complainant to a gali where they asked him to hand over the money. Market was closed on the said day. ATM card and Rs. 3,500/ or Rs. 3,800/ and mobile phone was snatched by the Anil and Manoj from the complainant. Thereafter, the accused persons went inside office like structure and told complainant to wait outside. Complainant waited for 15 mins. but the accused did not return. He returned back to the place where his goods had been kept but he did not find his luggage. The luggage included his clothes, pidha (wooden stool) and other articles. He asked certain person who told him to report the matter to the Police. He went to Police Station Vikas Puri but his report was not lodged. He came out and inquired about his ATM of Axis Bank. He requested the bank officials to block his ATM card. His account was checked and was told that Rs. 50,000/ had been withdrawn from the same. The ATM was thereafter blocked. On the next day he took out the details of the ATM transactions by going to the bank at Greater Noida and produced the copy of the same. He thereafter, reported the matter to Sector 39 Noida Gautam Budh Nagar vide complaint Ex. PW1/B. Accused persons were SC no.:51/14 Page 3/11 arrested after February on his pointing out from Botanical Garden Metro Station Noida. The arrest memo, personal search memo being Ex. PW1/C to Ex. PW1/F and signed by complainant at points A. Complainant was carrying mobile no. 9811693250. He did not receive back any of his lost articles. Complainant correctly identified by naming both the accused Anil and Sumit in the court.
In crossexamination he stated that he had left at 08:00 a.m. on 20/02/2013 and had first met Manoj at Paharganj when his goods were loaded in Rickshaw. There were not many people at Paharganj as it was day of "Delhi Band". He stated that his body was not affected except for his ability to speak after he was struck by handkerchief on his nose. He also stated that he was taken in Rickshaw by Manoj after hitting with the handkerchief and that Manoj had himself brought the Rickshaw. He stated that the correct position in regard to his presence in Rickshaw was that he was hit by handkerchief after he had boarded the Rickshaw. He was not waiting for Rickshaw and was waiting for going towards Railway Station which was exactly opposite to the place where he was standing. He also admitted that Rickshaw was not required for travelling from the said point towards Railway Station. He also stated that the complaint filed before Noida Police was written by his brother and his statement was recorded on the next day when accused had been apprehended. He again stated that he did not know remember the date of recording of his statement. He stated that accused Sumit was the first one to be arrested. He had gone to Police Station on the same day and he remained at the spot when the accused was arrested and taken by the Police. He stated that FIR was written in the evening when the accused had already been arrested. He however, clarified that he was not aware what FIR meant. He stated that when his brother had written the complaint he was present at Police Chowki Sector 39 Noida and the accused was in the lockup. He denied that the accused was not apprehended on his pointing out. He SC no.:51/14 Page 4/11 admitted that he had not filed any written complaint from 20/02/2013 till the day of arrest of the accused by Noida Police. He stated that he was complaining to everybody but nobody was listening. He denied that accused have been falsely implicated in the case. He also denied that he had himself withdrawn money from the ATM.
5. PW2 stated that as Duty Officer on 10/03/2013 at 07:50 p.m. he had received Zero FIR Ex. PX from SI Dharmender of Gautam Budh Nagar and roznamcha Ex. PY was prepared. Rukka with endorsement was handed over by SI Rakesh Kumar on the basis of which FIR Ex. PW2/A was recorded. The FIR was handed over to Const. Samay Singh for handing over to SI.
6. PW3 SI Dharmender Dahiya stated that on 09/03/2013 he was posted at PS Sector 39 Noida and Dev Singh Mehto lodged his complaint ; SHO directed him to inspect the site ; FIR Ex. PX and complaint Ex. PW1/B was handed over to him ; on 10/03/2013 at about 06:00 p.m. he alongwith complainant, Const. Tejpal and Const. Lokender reached Paharganj New Delhi Railway Station where they inspected the site and on pointing out of the complainant both the accused persons present in the court, who were standing near the toilet opposite New Delhi Railway Station Paharganj side were apprehended by him with the help of other Police officials. Complainant had told them that these two persons were involved in the commission of the offence in question. Thereafter, the accused persons were interrogated and arrested and he had signed on the arrest memo and personal search memo of both the accused at points B. The accused persons were taken to PS Paharganj and were produced before SHO alongwith copy of FIR Ex. P1, complaint Ex. PW1/B and General Diary Entry Ex. PW3/A alongwith personal search memo and arrest search memo Ex. PW1/C to Ex. PW1/F. Complainant was also produced before SHO and the articles of the accused were handed over to IO.
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In crossexamination he stated that investigation of the case was marked to him on 10/03/2013 but he did not remember the time when complainant had come to the Police Station. They had departed in Govt. Gypsy from their Police Station to Delhi. The accused persons were arrested at 07:00 p.m. He denied that the accused were not arrested near the toilet at Paharganj or that they were arrested at Noida. He had not asked any public person to join investigation in regard to the arrest of the accused. He had informed family member of the accused of their arrest on telephone. He was carrying investigation kit when he had left from Noida Police Station. He denied that the accused persons were already present in the Police Chowki or that they were not arrested from Paharganj.
7. PW4 Const. Lokender stated that complainant had lodged the complaint on the basis of which Nil FIR was recorded. He had accompanied SI Dharmder, Const. Tejpal for New Delhi Railway Station. Complainant was also with him. They had inspected the site and on identification of accused persons by the complainant they had apprehended accused Anil and Sumit who were standing near the toilet at New Delhi Railway Station. He had signed on the arrest memo and personal search memo at points C. In crossexamination he stated the complainant was alone at Police Station Sector 39 but he had not met the complainant. He was called by SHO at 12:0001:00 p.m. on 10/03/2013 when he alongwith SI Dharmender Dahiya and Tej Pal were also present. They had left Police Station at about 02:00 p.m. He admitted that the place where public toilet at Railway Station was situated was a busy place. The distance between public toilet and Paharganj Police Station was about 300 mts. and there were no shops in front of the said public toilet. They had reached Paharganj at about 05:00 05:30 p.m. The place where complainant was struck by accused Manoj was outside the gate of Railway Station. They had not asked any public person to join the investigation or at the time of arrest of the accused SC no.:51/14 Page 6/11 persons. No written work was done at the spot. They had directly taken the accused persons alongwith the complainant at PS Paharganj. The accused were arrested at 06:00 p.m. He denied that accused persons were not arrested from Paharganj but were already present in Police Chowki Sector 39 Noida and had been falsely implicated in the case.
8. PW5 stated that on 22/04/2013 he was handed over the case for further investigation. He checked the file which was complete in all respect and therefore, had forwarded the same to the Court. In crossexamination he stated that he had sent request for receiving CCTV footage and CDR. But no help was received from CDR and CCTV footage were not received as the data was overwritten.
9. PW6 is the IO of the case who stated that on 10/03/2013 Police officials of Sector 39 Noida alongwith complainant and two accused persons came to the Police Station and handed over Zero FIR to the Duty Officer. The investigation was marked to him. Accused had already been arrested and therefore, he had interrogated them casually. He reached the spot at Dr. Mujia Chowk, New Delhi Railway Station and prepared site plan Ex. PW6/A and returned back thereafter, interrogated accused persons thoroughly who voluntarily made disclosure statement which was reduced into writing. The same being Ex. PW6/B & Ex. PW6/C. In crossexamination he stated that Dr. Mujia Chowk was towards Paharganj side of New Delhi Railway Station and main gate was adjacent to the Chowk. Public toilet was at a distance of 5070 paces from the main gate from where accused had been apprehended.
10. Accused Anil Kumar and Sumit in their statement U/s 313 Cr. PC admitted that they were arrested but stated that they were arrested from Botanical Garden Metro Station SC no.:51/14 Page 7/11 and not from New Delhi Railway Station. They also denied that they were arrested on the pointing out of the accused.
11. The offence against accused persons are that accused Manoj (not apprehended) hit a handkerchief containing intoxicating substance on the nose of the complainant rendering him partially senseless and thereafter, took him alongwith goods to Uttam Nagar where both the accused persons namely Anil and Sumit were called and in connivance with each other snatched the ATM card, mobile phone, Rs. 3,800/ from the complainant. They further withdrew Rs. 50,000/ through ATM of the complainant and also committed theft of his articles.
12. Complainant stated that immediately after the incident on 20/02/2013 he had gone to Police Station Vikas Puri but no complaint was lodged. He thereafter, returned to Greater Noida and on 09/03/2013 lodged a written complaint. The accused persons on his pointing out were arrested by Noida Police from Botanical Garden Metro Station and were taken to the Police Station at Noida. He also stated that accused persons were already present in the Police Chowki Noida when he had given his written complaint to them. PW3 stated that the accused persons were arrested on 10/03/2013 at 07:00 p.m. from a public toilet near New Delhi Railway Station. Complainant at the said time was with them and on his pointing out the two accused persons were arrested. No public person was involved by him at the time of arrest of the accused person at New Delhi Railway Station. PW4 also reiterated the same story and reaffirmed that the accused persons were arrested from a place near public toilet of New Delhi Railway Station at about 06:00 p.m. Thereafter, the accused persons alongwith documents were handed over to Police officials of PS Paharganj.
13. There are three witnesses to the arrest of the accused persons, namely, SC no.:51/14 Page 8/11 complainant PW1, PW3 SI Dharmender Dahiya of Noida Police and PW4 Constable of Noida Police.
14. Complainant stated that the accused persons were arrested by the Noida Police on his pointing out from Botanical Garden Metro Station Noida. He had given written complaint in respect of the incident in question to Noida Police on 09/03/2013 and at the time of giving of the complaint, both the accused persons were already present in the lockup of the Noida Police and his statement was recorded on the next day of the day when accused were apprehended. He stated that the Sumit was the first one to be arrested and was arrested at day time. PW3 and PW4 have stated that on 10/03/2013 when they were going towards Police Station Paharganj alongwith the complainant to hand over the Zero FIR, complainant had pointed out towards two persons who were at the toilet near New Delhi Railway Station Paharganj side and the said accused were apprehended at the spot by them at about 07:00 p.m. The arrest memo and personal search memo were prepared which were signed by complainant at point A, PW3 & PW4 signed at points B & C respectively. The arrest memos are dated 10/03/2013 and the place of arrest is shown as C.F. Road near public toilet New Delhi Railway Station Paharganj side and the time being 19:00 hrs. The information of the arrest is shown to be delivered to Neelam W/o Anil Kumar and Mainuddin friend of accused Sumit. The statements of the said witnesses are therefore, contradictory on the points of date, time and place of arrest of the accused persons. Complainant in crossexamination stated that the accused persons were already in lockup when he had given his complaint on 09/03/2013 to Noida Police. Thus, the manner of arrest of accused persons from public toilet New Delhi Railway Station on 10/03/2013 at 07:00 p.m. when the Police party was allegedly only going to PS Paharganj for handing over the Zero FIR without involving any public witness cannot be accepted without suspicion. The combined effect of all of the above said contradictions is SC no.:51/14 Page 9/11 that the arrest of the accused persons as per the prosecution's story is under serious doubt.
15. Complainant stated that he had delivered the ATM to accused Anil when he was taken to gali at Uttam Nagar and the accused persons withdrew Rs. 50,000/ from the same. But the ID no. of the ATM as disclosed by the complainant was found to be incorrect and therefore, no CCTV footage whereby the person who had withdrawn the amount could have been identified was produced. The said letter is available on record and is issued by Branch Manager, HDFC Bank, Tagore Garden Branch. Police has also not been able to recover any complainant's article from the accused persons. The prosecution had tried to explain that the mobile phone of the complainant and other goods had been handed over to other accused Manoj who could not be arrested. But the fact remains that there is no recovery of any of the complainant's articles from any of the said accused persons.
16. In regard to the manner of the incident in question. Complainant stated that he got down from the Bus at New Delhi Railway Station at Paharganj which was opposite to the gate of the Railway Station and there was no need for him to hire Rickshaw for going towards the Railway Station. But he stated that he had boarded a Rickshaw alongwith accused Manoj. This fact remained unexplained as to why complainant had boarded the Rickshaw when there was no need of Rickshaw by the complainant at the said time. Complainant in regard to withdrawal of his money by his ATM card stated that he disclosed wrong pin number on two occasions but then the accused persons started beating him and therefore, he was forced to disclose the correct pin on the third occasion. In this regard, it is not clear as to whether the ATM site in question was near the place where accused was taken into gali and ATM was snatched or accused had gone to nearby ATM, tried to withdraw the money and on not finding the correct number returned again and again to the site. SC no.:51/14 Page 10/11
17. There is further unexplained delay of about 20 days in lodging of the FIR. Complainant stated that on 20/02/2013 he had initially gone to PS Vikas Puri for lodging of his complaint but the same was not lodged. He however, made no efforts to either file written complaint or even approach higher officers for non lodging of his FIR till 09/03/2013. Though it is not unnatural for a layman belonging to a lower strata to have once approached the Police and on their refusal not to take further action. But in the present case complainant had not left the matter but lodged written complaint with Noida Police on 09/03/2013 and failed to explain why written complaint was lodged after about 20 days delay.
18. The combined effect of the above said discussion is that the prosecution has failed to prove the involvement of the accused persons in the offence in question beyond reasonable doubt. The accused persons therefore, are entitled for benefit of doubt.
19. Accordingly, accused persons are acquitted for the offences punishable u/s 328/386/379/34 IPC. Bail bonds of the accused persons shall however, remain in force for a further period of 06 months in terms of section 437(A) Cr. PC. File be consigned to Record Room.
Announced in the open court (DINESH BHATT)
on 25/04/2014 ASJ/Delhi/25/04/2014
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