Delhi District Court
Fir No. 650/15 State vs . Ravi & Anr. Page No. 1 Of 15 on 2 March, 2020
IN THE COURT OF NAVEEN GUPTA:
ADDL. SESSIONS JUDGE - 05 (SHAHDARA DISTRICT)
KARKARDOOMA COURTS : DELHI
ID No. 870/2016
FIR No. 650/2015
PS Harsh Vihar
Under Section 392/397/411/34IPC
In the matter of
The State
Versus
1.Ravi, S/o Mr. Ramesh, R/o H. No. C2/31, Gali No. 1, Harsh Vihar, Delhi.
2. Rahul, S/o Mr. Dhir Singh, R/o H. No. C313, Gali No. 3, Rajeev Nagar, Mandoli, Delh - 110093.
.......... Accused
Date of institution : 05.03.2016
Date of reserving the order : 17.02.2020
Date of Judgment : 02.03.2020
Judgment
1. The case of the prosecution is that on 21.12.2015 at about 2.00 p.m., at Service Road, Near Bank Colony Bus Stand, the accused Ravi and accused Rahul, in furtherance of their common intention, robbed the FIR No. 650/15 State vs. Ravi & Anr. Page No. 1 of 15 PS Harsh Vihar complainant Varun Singh of his mobile phone and Rs.2,300/ from his pocket. Further, while robbing the complainant, accused Ravi used a deadly weapon i.e. surgical blade in order to commit robbery. Further, on 24.12.2015, the said mobile phone was recovered from the possession of the accused Ravi. After completion of investigation, challan was filed.
2. After compliance of provision under Section 207 Cr.P.C., Ld. MM02, Shahdara, Karkardooma Courts, Delhi, committed the case to the Court of Sessions vide order dated 05.04.2016.
3. Vide order dated 08.08.2016, charge was framed against the accused persons under Section 392/34 of the Indian Penal Code (for short 'IPC') to which they pleaded not guilty and claimed trial. Accused Ravi was further charged for the offences punishable under Sections 397 and 411 IPC to which he pleaded not guilty and claimed trial.
4. In support of its version, the prosecution examined eight witnesses.
PW1 is HC Bijender Kumar. He tendered endorsement on rukka as Ex.PW1/A, computerized copy of FIR as Ex.PW1/B and DD No. 28A as Ex.PW1/C, in respect of recording of factum of registration of FIR and certificate under Section 65B of the Evidence Act qua FIR as Ex.PW1/D. PW2 is ASI Ompal Singh. He tendered entry in register No. 19 in respect of deposition of one sealed pullanda by IO ASI Bhola Ram on 24.12.2015 and the same was exhibited as Ex.PW2/A. PW3 is Varun Singh/complainant. He submitted that on FIR No. 650/15 State vs. Ravi & Anr. Page No. 2 of 15 PS Harsh Vihar 21.12.2015, he was going to Jhandewalan for an interview. At about 2.00 p.m., when he reached at Service Road, Near Bank Colony Bus Stand, Shahdara, he went to pee on the side of service road. Meanwhile, two boys came. One boy had caught hold of his neck with his arm. Another boy robbed his mobile from right side pocket of his pant and Rs.2,300/ from back pocket of the pant. The person, who robbed his mobile phone and money, took out sim from the mobile and handed over the same to him. The person, who robbed his mobile phone and money, was having a surgical blade and he threatened him to run away else he would kill him. Thereafter, both of them fled away. PW3 has further stated that he then approached one person sitting at the bus stand and told him about the incident. He (PW3) took his mobile phone and made call at 100 number. ASI Bhola Ram came there, who made inquiry from him and recorded his statement. He tendered his statement Ex.PW3/A. He has further submitted that he was using sim card bearing connection number 7042187331 belonging to Airtel. He has further submitted that the boy, who was in front of him, had taken out his mobile and money and he had shown surgical blade to him. He could not forget his face. He (PW3), during his examination, pointed out to accused Ravi as the boy, who had robbed him by using blade. He has further stated that he could not see the face of another boy properly and he could not identify that boy. He has further stated that he had identified those persons in Tihar Jail on 03.02.2016.
PW3 has further stated that he knew both the accused persons by their names since prior to this incident. On the date of incident, while he was sitting in the police station, one unknown person was also sitting FIR No. 650/15 State vs. Ravi & Anr. Page No. 3 of 15 PS Harsh Vihar there. He had told the policeman about names of Ravi and Rahul being involved in this incident. Thereafter, he had come back to his house.
During his examination, one mobile phone was produced before the court. PW3 identified the same as the one which was robbed from him. One sim card of Vodafone company was found inserted in one of the sim slots. The said phone was tendered as Ex.PW3/Article1.
During his crossexamination by Ld. Defence Counsel, PW3 has stated that he had made call at 100 number at about 5.00 p.m. PW4 is Ct. Jitender. He stated that on 21.12.2015, at about 4.30 p.m., he received information through wireless operator regarding snatching of phone and money. He reduced the information into writing vide DD No. 57B. He tendered the same as Ex.PW4/A. PW5 is Sonu. He stated that on 22.12.2015, two boys came to him and requested him to give Rs.500/ They asked him to keep a mobile phone as security for the same. He gave Rs.500/ to him and kept the mobile phone as security. He had used the said mobile phone after putting sim into the same. He further stated that on 23.12.2015, the said boy came to him and repaid Rs.500/. He (PW5) gave back the said mobile phone to him. He initially stated that he could not identify those boys, but he again stated that those boys were present in the court on that day of his examination. PW5 has stated that he could not identify the said mobile. He was crossexamined by Ld. Addl. PP for the State on some aspects.
PW6 is Mr. Sumeet Anand, Ld. MM, Patiala House Courts, Delhi. He tendered TIP proceedings of the accused persons as Ex.PW6/A and Ex.PW6/B. FIR No. 650/15 State vs. Ravi & Anr. Page No. 4 of 15 PS Harsh Vihar PW7 is HC Shamim Khan. He submitted about the steps taken by the Investigating Officer during investigation conducted on 21.12.2015 and 24.12.2015. He wrongly identified accused Ravi as Rahul and accused Rahul as Ravi. He tendered arrest memo and personal search memo of the accused persons as Ex.PW7/A to Ex.PW7/D, disclosure statement of accused Ravi as Ex.PW7/E and of accused Rahul as Ex.PW7/F. He further tendered the seizure memo of mobile phone as Ex.PW7/G, site plan of recovery of mobile phone as Ex.PW7/H and pointing out memo of place of occurrence prepared at instance of accused Rahul as Ex.PW7/I and that of accused Ravi as Ex.PW7/J. PW8 is ASI Jagdev Kumar. He submitted about the investigation conducted by Investigating Officer on 24.12.2015.
Further, during trial, on 12.04.2018, Investigating Officer/ASI Bhola Ram was reported to have expired and he was dropped from the list of witnesses.
5. After conclusion of the prosecution evidence, statements of both accused persons were recorded under Section 313 Cr.P.C., wherein they claimed themselves to be innocent.
Accused Ravi, however, submitted that the complainant/PW3 resided in the same colony just 23 streets away from his house. He was known to him prior to the present incident. The area Mandoli Extension, where the complainant/PW3 resided, was beside the Harsh Vihar area, where he (accused Ravi) resided. He has further stated that there was a ground nearby his house. There was a match of gillidanda, a local game, to be played amongst neighbouring boys. Complainant/PW3 had taken FIR No. 650/15 State vs. Ravi & Anr. Page No. 5 of 15 PS Harsh Vihar Rs.500/ from him (accused Ravi) some days prior to the alleged incident of 21.12.2015. He demanded repayment of the said Rs.500/ from the complainant/PW3. He (Varun Singh) handed over his phone of white colour to him (accused Ravi) after taking out sim from it and stated that he would take the phone back from him (accused Ravi) after payment of loan of Rs.500/. Thereafter, all of a sudden, one day police came at his (accused Ravi) house. Police inquired him (accused Ravi) about the said phone and he showed the said phone to the police. He has further stated that he was falsely implicated in the present case.
Accused Rahul has also submitted on the similar lines as stated by accused Ravi. He has further stated that when he (accused Rahul) was going to his house, police apprehended him from Budh Bazar. Thereafter, he was falsely implicated in the present case. He has stated that complainant/PW3 was addicted to drug. He had come to know that he (complainant/PW3) has expired.
Both the accused did not opt to lead defence evidence.
6. I have heard final arguments from Ld. Addl. PP for the State and Ld. Counsel for accused persons.
7. Ld. Addl. PP for the State has argued that the prosecution has proved its case beyond reasonable doubt that accused persons robbed the complainant/PW3 of his mobile phone and Rs.2,300/ and further, at the time of commission of robbery, accused Ravi used a deadly weapon i.e. surgical blade. Further, it has also been proved beyond reasonable doubt that the said mobile phone was recovered from the possession of accused FIR No. 650/15 State vs. Ravi & Anr. Page No. 6 of 15 PS Harsh Vihar Ravi. He has further stated that the version of PW3 that he knew both the accused persons by their names since prior to this incident, was a typographical error committed during recording of his testimony before the court. Ld. Addl. PP for the State has explained that had the accused persons been known to the complainant/PW3 prior to the date of the impugned incident, the complainant/PW3 would have mentioned their names in the FIR itself.
8. Ld. Counsel for the accused persons has argued that there are material contradictions in the testimonies of the prosecution witnesses. The complainant/PW3 has categorically stated in his examinationin chief that he knew both the accused persons by their names since prior to this incident. He has further pointed out other lacunae in the case of prosecution. Those have been taken up one by one in the following paragraphs.
Prior Acquaintance of PW3 with Accused Persons?
9. In the present case, PW3 is the star witness. He has stated that when he was going for an interview, at about 2.00 p.m., he was robbed by accused persons of his mobile phone and Rs.2,300/. During his examinationinchief, he identified accused Ravi as the person, who had taken out his mobile phone and money and who had shown him surgical blade. Further, initially, he did not identify accused Rahul. But, when the court confronted him as to how he had identified the accused Rahul during TIP proceedings, he answered in affirmative and stated that accused Rahul was involved in the incident.
FIR No. 650/15 State vs. Ravi & Anr. Page No. 7 of 15 PS Harsh Vihar
10. One important submission was made by the complainant/PW3 during his examinationinchief that he knew both the accused persons by their names since prior to this incident. Ld. Addl. PP for the State has explained the abovesaid submission as a typographical error.
11. Now, it is to be decided whether the abovesaid version is a typographical error or it was a genuine submission made by complainant/PW3. Further, the court wishes to observe at this juncture that if the abovesaid version of complainant/PW3 is proved to be genuine and not a typographical error, then by not mentioning the names of the accused persons during his statement recorded as Ex.PW3/A, this itself indicates the false implication of the accused persons at the behest of complainant/PW3, as claimed by the accused persons in their statements recorded under Section 313 Cr.P.C.
12. Firstly, the prosecution has not sought any explanation/ clarification from PW3 during his examination before the court on this aspect. Further, when the said submission is scrutinized in the light of suggestion put to him during his crossexamination conducted on behalf of the accused persons and statement of accused persons recorded under Section 313 Cr.P.C., the said version appears to be beyond a mere typographical error. During his crossexamination, a suggestion was put to complainant/PW3 that he had to repay Rs.500/ to accused Ravi as he had taken the same from him in the past. Similar is the stand taken by the accused persons in their statements recorded after conclusion of the prosecution evidence.
FIR No. 650/15 State vs. Ravi & Anr. Page No. 8 of 15 PS Harsh Vihar
13. Furthermore, the accused persons have claimed that the complainant/PW3 resided 23 streets away from the house of the accused Ravi and of accused Rahul. During crossexamination of PW7, it was suggested to him by Ld. Defence Counsel that complainant/PW3 was residing in the same gali as that of accused or that he was residing nearby gali. Though PW7 denied the suggestion, but he voluntarily stated that the complainant/PW3 was residing in gali No. 14, whereas the accused persons were residing in gali No. 3, which were at much distance from each other. The abovesaid observations indicate that the accused persons used to reside nearby area of residence of the complainant/PW3 and the argument that the complainant/PW3, knew the accused persons by their names due to the said reason, cannot be ruled out.
Time of Occurrence of the Impugned Incident
14. PW3/Complainant has stated that on 21.12.2015, he was going for an interview. At about 2.00 p.m., he was robbed by the accused persons. During his crossexamination, complainant/PW3 has stated that he had made call at 100 number at about 5.00 p.m. During the period from time of incident and time of making this call, he had made telephonic calls to his uncle Mr. R.D. Singh (Advocate), his mother, his sister and father. He had made all these calls from the place of incident itself. He had made these calls using mobile phone of another unknown person, who was present at the bus stand. His mother and father had advised him to call his uncle Mr. R.D. Singh (Advocate). His uncle was not taking calls initially and finally, he picked his call. He (uncle) asked him to make call at 100 number. After having talked with his uncle, he FIR No. 650/15 State vs. Ravi & Anr. Page No. 9 of 15 PS Harsh Vihar made call at 100 number within 1015 minutes. He has further deposed that on the date of examination before the court, he had come to the court alongwith his uncle Mr. R.D. Singh (Advocate).
15. Firstly, complainant/PW3 has not explained in his statement i.e. Ex.PW3/A recorded by the Investigating Officer as well as before the court as to when he was going for an interview for a job, then why he did not proceed to face the said interview after commission of the alleged robbery at 2.00 p.m. Further, it appears unreasonable that a person, who has been robbed of his mobile and money, he would wait for more than 2 hours in making PCR call. Though, complainant/PW3 has tried to explain as to why he got delayed in making PCR call. He has stated that he had made several calls to his family members. It again appears to be unreasonable that any person present at the bus stand would lend his mobile phone to another person for several times to make calls to his family members. If it was only a single person, whose mobile phone had been used by the complainant/PW3 to make several calls, it is highly unlikely that any person would wait for almost 2 hours to facilitate complainant/PW3 to make calls. On other hand, it is beyond comprehension that PW3 was assisted by several persons, by lending their phones, to make calls to his family members. In these circumstances, the testimony of PW3 needs corroboration on the aspect of time of occurrence of the impugned incident.
16. At this stage, another aspect related to the time of occurrence of the alleged robbery is worth noting. As per case of prosecution, rukka FIR No. 650/15 State vs. Ravi & Anr. Page No. 10 of 15 PS Harsh Vihar was sent at 5.45 p.m. for registration of FIR and in the FIR, the time of receipt of information at the police station has been recorded as 5.50 p.m. on 21.12.2015. But, PW7 during his crossexamination stated that around 8.00 p.m., he had gone with rukka to the police station. It took about 10 minutes to reach the police station. The registration of FIR and completion of all formalities took about 4045 minutes. He returned to the spot at about 9.00 p.m. In these circumstances, testimony of the Investigating Officer becomes very crucial, but the same is not available due to the reason beyond control of the prosecution. Thus, only one police official, PW7, could be examined by the prosecution on this aspect related to the investigation conducted by the Investigating Agency. The said version of PW7 in the background of testimony of complainant/PW3 creates doubt on the case of prosecution in respect of the time of occurrence of the alleged incident.
Recovery of Mobile Phone
17. As per case of prosecution, the robbed mobile phone was recovered from the possession of the accused Ravi on 24.12.2015, pursuant to his disclosure statement Ex.PW7/E. It has been stated by Ct. Shamim Khan/PW7 and HC Jagdev Kumar/PW8, who are witnesses to the recovery of the said mobile phone, that on 24.12.2015, a secret informer told them that two boys, who had committed robbery with a boy 23 days before, would come behind Petrol Pump at Open Park, near Mandoli Jail. Thereafter, they apprehended the accused persons. But, the circumstances leading to the apprehension of the accused cast doubt upon the case of the prosecution on this aspect.
FIR No. 650/15 State vs. Ravi & Anr. Page No. 11 of 15 PS Harsh Vihar
18. It is pertinent to note that complainant/PW3, in his examination inchief, has stated that on the date of incident while he was sitting in the police station, one unknown person was also sitting there. He told the policeman about names of Ravi and Rahul being involved in this incident. Thereafter, he had come back to his home. From the abovesaid version of complainant/PW3, it can be inferred that the Investigating Agency had come to know about the names of the offenders, who had allegedly committed the impugned offence, on 21.12.2015 (the date of incident) itself. Then, why the Investigating Agency did not proceed to trace and apprehend the persons, who have been named by the unknown person, as claimed by complainant/PW3.
19. Furthermore, Ct. Shamim Khan/PW7 and HC Jagdev Kumar/PW8 have stated that on i.e. 24.12.2015, they alongwith IO ASI Bhola Ram, were present for patrolling and at about 7.15 a.m., a secret informer shared an information about the accused persons. But, a DD Entry No. 8A dated 24.12.2015 is available on record, though the same has not been tendered in evidence. The said DD contains that at 7.00 a.m., ASI Bhola Ram alongwith Ct. Shamim Khan/PW7 and HC Jagdev Kumar/PW8 had departed for the investigation of the case FIR No. 650/15 under Section 392/34 IPC. Thus, DD Entry No. 8A leads to infer that ASI Bhola Ram/IO had already received an information in respect of the present case and accordingly, he alongwith Ct. Shamim Khan/PW7 and HC Jagdev Kumar/PW8 had proceeded for further investigation. But, surprisingly, Ct. Shamim Khan/PW7 and HC Jagdev Kumar/PW8 have given a different picture that they were on patrolling on 24.12.2015.
FIR No. 650/15 State vs. Ravi & Anr. Page No. 12 of 15 PS Harsh Vihar Further, Ct. Shamim Khan/PW7 has stated that on 24.12.2015, they had gone walking, while HC Jagdev Kumar/PW8 has stated that he alongwith Ct. Shamim Khan/PW7 had gone for patrolling duty on Bajaj Chetak Scooter. Though the abovesaid aspects may be considered as minor lacunae in the case of prosecution, but the totality of the facts and circumstances of this case and version of complainant/PW3, as mentioned in the preceding paragraph, make the same considerable. This observation gets further strengthened with the submission of accused Ravi that he had been falsely implicated in the present case at behest of complainant/PW3 and further, with the condition of case property produced before the court and testimony of PW5, which are to be discussed in detail in the following paragraphs.
Case Property produced in the Court
20. It is the case of prosecution that when the mobile phone was robbed from complainant/PW3; the person, who had robbed mobile phone, took out sim from the mobile phone and handed over the same to complainant/PW3. Further, as per seizure memo Ex.PW7/G of mobile phone, the mobile phone bears IMEI Nos. i.e. 911154951235004, 91115495189006 and it does not contain any sim. Surprisingly, when the said mobile phone (Ex.PW3/Article1) was produced before the court during examination of complainant/PW3, one sim of Vodafone company was found inserted in one of the sim slots. The prosecution has nowhere explained as to how the sim was found in the recovered mobile phone, when the sim belonging to complainant/PW3, had already been handed over by the accused persons after robbing of the mobile. Ct. Shamim FIR No. 650/15 State vs. Ravi & Anr. Page No. 13 of 15 PS Harsh Vihar Khan/PW7 and HC Jagdev Kumar/PW8, who were witnesses to the recovery of the said mobile phone, did not provide any explanation on this aspect. It remained an unanswered question as to in whose name the said sim had been issued. Again, the testimony of investigating Officer becomes essential to explain the said lapse in the case of prosecution, failing which the recovery of case property from the possession of accused Ravi in the circumstance as claimed by the prosecution becomes doubtful.
Examination of witness Sonu/PW5
21. The prosecution has examined one independent witness namely Sonu/PW5. Through this witness, the prosecution had tried to prove that between the date of incident i.e. 21.12.2015 and date of recovery of mobile phone i.e. 24.12.2015, the accused persons had approached Sonu/PW5 for borrowing Rs.500/ from him against the security given in the form of robbed mobile phone. But, Sonu/PW5 did not support the case of prosecution in the manner as proposed by the prosecution. There is another important aspect attached regarding the testimony of Sonu/PW5. The case of prosecution is silent as to how the Investigating Agency identified and approached Sonu/PW5. Ct. Shamim Khan/PW7 and HC Jagdev Kumar/PW8 had accompanied the IO/ASI Bhola Ram during investigation into the present case, but they have not uttered any single word in respect of the participation of Sonu/PW5 in the investigation of the present case. It appears from the case of prosecution put before the court that Sonu/PW5 was merely introduced to lend credence to the case of prosecution and to create an evidence that the FIR No. 650/15 State vs. Ravi & Anr. Page No. 14 of 15 PS Harsh Vihar accused persons had robbed mobile phone and dealt with the stolen property after the incident of robbery and before the recovery of mobile phone.
22. In view of above said discussion, the accused persons deserve benefit of doubt. The prosecution has failed to prove the guilt of the accused persons beyond reasonable doubt. Accordingly, I acquit accused persons.
File be consigned to record room.
Announced in open Court (Naveen Gupta)
On 2nd March, 2020 Addl. Sessions Judge05
Shahdara District,
Karkardooma Courts, Delhi
FIR No. 650/15 State vs. Ravi & Anr. Page No. 15 of 15
PS Harsh Vihar