Delhi District Court
State vs (1) Irfan @ Kabir on 11 March, 2013
IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS
JUDGE(EAST), KARKARDOOMA COURTS, DELHI.
SC No.46/2011
Unique Case ID No.02402R0365702011
FIR No.495/2011
Police Station Jagat Puri
Under Section 392/397/411/34 IPC
State Versus (1) Irfan @ Kabir
S/o Suresh
R/o D110/111, Gali No.4,
Jagat Puri, Delhi.
(2) Babu S/o Sh. Mata Prasad,
R/o H.No.28/28, Gali No.16,
Vishwas Nagar, Delhi.
Date of Institution : 07.12.2011
Date of judgment reserved : 27.02.2013
Date of judgment : 11.03.2013
JUDGMENT
Accused persons, namely, Irfan @ Kabir and Babu (in judicial custody) have been sent to face trial by the police of Police Station Jagat puri in FIR No.495/2011 under Section 392/397/411/34 IPC.
SC No.46/2011 State Vs. Irfan @ Kabir etc. Page 1 of 24 2 Facts of the present case, as emerging from the chargesheet, are that on 04.10.2011 SI Rajesh Dangwal (PW13) along with Ct. Rahul (PW4) were returning after attending DD No.43A Ex.PW4/A and reached 57 feet road near Ambedkar Gate and met ASI Hanif Khan (PW2) and Ct. Praveen (PW3). IO also found the public gathered at the spot. From the crowd, complainant Jitender Yadav (PW7) met the IO and informed that the accused persons Kabir @ Irfan and Babu who had committed robbery, had been beaten badly by the public and had suffered injuries on their face. He also informed the IO that accused Kabir @ Irfan had taken out Rs.1,000/ (two notes of Rs.500/ denomination) from his pocket whereas accused Babu had shown a knife to him. Complainant Jitender Yadav (PW7) got his statement Ex.PW7/A recorded.
3 In his statement Ex.PW7/A, complainant Jitender Yadav (PW7) stated that he was permanent resident of Gorakhpur and had been residing at H.No.1/1, Packaging India Pvt. Ltd. near Bhuteshwar Mandir, Kanti Nagar, Krishna Nagar, Delhi. He has also stated that he had been working as a Forman in plastic factory in Noida. He has stated that on 4.10.2011 at about 8.15 p.m., after his duty, he was coming to his house on his motorcycle bearing No. SC No.46/2011 State Vs. Irfan @ Kabir etc. Page 2 of 24 DL7SAA1009. At about 9.00 p.m. when he reached on road No. 57 Bus Stand near Ambedkar Gate, he found a huge traffic and there was traffic jam. Accused persons came in front of his motorcycle. One of the accused persons said "Would he ride the motorcycle on them". Complainant told them that there was a traffic jam and they had unnecessarily came before his motorcycle. This infuriated accused persons. Accused persons allegedly obstructed his way and started beating him. One of the accused took out mobile phone Nokia Model C100 having Sim No.8750811252 (which belonged to his cousin brother Dhananjay) and Rs.1,000/ (in the denomination of two notes of Rs.500/) from upper shirt pocket of the complainant. Second accused showed knife to the complainant. Complainant raised alarm on which some public persons along with complainant started chasing accused persons. After a chase, both the accused persons were overpowered. During chase, accused who had taken out mobile from his pocket, threw it in the traffic and same could not be found despite best efforts. The name of accused who had taken out mobile and Rs. 1,000/ from shirt pocket of the complainant came to be known as Irfan @ Kabir and name of the accused who had shown knife to the complainant came to be known as Babu.
SC No.46/2011 State Vs. Irfan @ Kabir etc. Page 3 of 24 4 On search of accused Irfan @ Kabir, robbed amount of Rs.1,000/ was recovered from him and one open knife was recovered from accused Babu. In the meantime, other police officials also reached there. Both the accused persons along with the recovered robbed money and knife were handed over to the police. Thereafter, IO took the measurement of knife. Sketch Ex.PW2/A of the recovered knife Ex.P1 was prepared and it was seized after converting it into a sealed pullanda vide seizure memo Ex.PW2/B. The police also took robbed amount of Rs.1,000/ Ex.P2 into possession vide seizure memo Ex.PW2/C. On further search of accused Irfan @ Kabir, two mobile phones make Nokia, one mobile phone make Sony Ericson and two dummy mobile phones of LG, Ex.P3 (collectively) were recovered and same were seized vide seizure memo Ex.PW2/D. 5 IO made endorsement Ex.PW13/A on the statement Ex.PW7/A of the complainant (PW7). IO sent Ct. Rahul (PW4) to the police station for registration of the FIR. In the police station, Duty Officer HC Ravinder Singh (PW6) registered FIR and proved its copy as Ex.PW6/A. Duty officer also made his endorsement Ex.PW6/B on the rukka. Ct. Monu Kumar (PW10) has proved the copy of DD No. 51B as Ex.PW10/A regarding departure of ASI Hanif Khan and Ct. SC No.46/2011 State Vs. Irfan @ Kabir etc. Page 4 of 24 Praveen for patrolling in the area. Complainant Jitender Yadav (PW7) was taken to LBS Hospital and was medically examined vide MLC Ex.PW5/A. Accused Kabir @ Irfan and Babu were also medically examined vide MLCs Ex.PW5/B and Ex.PW5/C respectively. IO prepared the site plan Ex.PW13/B. 6 Accused Kabir @ Irfan and Babu were arrested vide arrest memos Ex.PW2/E and Ex.PW2/F respectively and their personal searches were conducted vide memos Ex.PW2/G and Ex.PW2/H respectively. Information Ex.PW13/C and Ex.PW13/D regarding arrest of the accused persons was given to their relatives. Notification regarding carrying of prohibited knife has been proved as Ex.PW13/E. During the course of investigation, photocopy of bill of mobile phone make Nokia C110 allegedly robbed from the complainant (PW7) was obtained from one Dhananjay (PW1). 7 IMEI search in respect to the mobile phones recovered from accused Irfan @ Kabir was got conducted. Sh. Israr Babu (PW8) has stated that mobile phone SIM no.8860066925 was issued to one Bhawati. Photocopy of the application form and ID proof in support thereof have been proved as Ex.PW8/A and Ex.PW8/B. Sh. Amarnath Singh (PW9) has stated that mobile phone SC No.46/2011 State Vs. Irfan @ Kabir etc. Page 5 of 24 SIM no.8750811252 was issued to one Ramesh Yadav and copy of the application form and ID proof have been proved as Ex.PW9/A and Ex.PW9/B. Sh. R.K. Singh (PW12) has stated that mobile phone SIM no.9958146202 was issued to one Gwal Das Rathi and he has proved the copy of the application form and supported documents Ex.PW12/B and Ex.PW12/C. PW12 has also stated that SIM No.8527064261 was issued to Smt. Bhagwati and he has proved the copy of the application form and supporting documents as Ex.PW12/D and Ex.PW12/E. During investigation, statement of one Raju (PW11) owner of mobile phone name Sony Ericsson was recorded.
8 After completion of the investigation, chargesheet was filed in the Court of Ld. M.M. who after complying with provisions of section 207 Cr.P.C. committed the case to the Court of Sessions which in turn assigned the case to this Court for trial in accordance with law.
9 After hearing Ld. counsels for the accused persons and Ld. Addl. PP for the State, charge under Section 392/34 was framed against both the accused. A separate charge under Section 397 IPC was framed against accused Babu whereas a separate charge under Section 411 IPC was framed against accused Kabir @ Irfan. Accused SC No.46/2011 State Vs. Irfan @ Kabir etc. Page 6 of 24 persons pleaded not guilty to the charges framed and claimed a trial. 10 In order to prove its case, prosecution has examined 13 witnesses. PW7 Jitender Yadav is the complainant. PW1 Dhananjay is the cousin of complainant. PW11 Raju is the owner of mobile phone make Sony Ericsson. PW5 Dr. Rajni Lohia medically examined the complainant and proved his MLC as well as MLCs of both the accused persons. PW6 HC Ravinder Singh was the duty officer in the police station at the relevant time whereas PW10 Ct. Monu Kumar has proved the departure entry of ASI Hanif Khan and Ct. Praveen. PW8 Sh. Israr Babu, PW9 Sh. Amarnath Singh and PW12 Sh. R.K. Singh have proved the documents of SIMs of various mobile phones allegedly recovered from accused Irfan @ Kabir. PW3 Ct. Praveen Kumar, PW4 Ct. Rahul and PW2 ASI Hanif Khan remained associated with the investigation conducted by PW13 SI Rajesh Dangwal.
11 After completion of prosecution evidence, statements of accused persons under section 313 Cr.P.C. were recorded in which they has denied the case of the prosecution in toto. They have stated that they are innocent and have been falsely implicated in the present case. They have opted not to lead evidence in their defence. SC No.46/2011 State Vs. Irfan @ Kabir etc. Page 7 of 24 12 I have heard Ld. Addl. PP for the State, Ld. Counsel for accused Babu as well as Ld. Amicus Curiae for accused Irfan @ Kabir. I have meticulously gone through their submissions and material available on record.
13 Ld. Counsels for the accused persons have argued that prosecution has failed to prove its case against accused persons as the complainant has turned hostile and did not support its case. It is further argued that there is no other evidence on record which connects accused persons with the commission of the offence in the present case, therefore, accused persons are entitled for acquittal. 14 On the other hand, Ld. Addl. PP for the State has argued that apart from evidence of complainant, there is evidence on record which goes to prove case against the accused. It is further argued that prosecution has proved its case against the accused persons.
Robbery 15 Case of the prosecution is that on the day of incident, accused persons committed robbery of mobile phone and cash of Rs. 1,000/ from the complainant (PW7). It is also case of the prosecution that accused robbed Rs.1,000/ from the shirt pocket of complainant SC No.46/2011 State Vs. Irfan @ Kabir etc. Page 8 of 24 Jitender Yadav (PW7) on the point of knife, apart from his mobile phone.
16 The case of the prosecution is entirely based on the testimony of Jitender Yadav (PW7). PW7 Jitender Yadav is the complainant of the present case. He has deposed that he was working as an operator in Gatta factory at Sector10, Noida. On 04.10.2011 while he was coming to his house on his motorcycle No.DL 7S AA 1009 and reached Jagat Puri near Ambedkar Gate at about 8.30 PM, he found traffic jam. In the meantime, someone came from the behind and took out mobile phone of PW7 make Nokia and Rs.1,000/ (two notes of Rs.500/ denomination) from front pocket of his shirt. He has stated that he could not see the person who took out his mobile phone and cash from his shirt pocket. He took turn to see the person but he did not find anyone behind him. There was a crowd and he went to police station. From the police station, he was taken to LBS Hospital where he was medically examined and after that he returned to his house. He has also stated that lateron police officials demanded purchase bill of the mobile phone and he produced the same to the police. Thereafter, he did not visit the police. He has also stated that he did not know anything more about this case. However, he admitted SC No.46/2011 State Vs. Irfan @ Kabir etc. Page 9 of 24 his signatures on statement Ex.PW7/A. PW7 stated that he did not know any of the accused persons present in the Court. He has admitted his signatures on memos Ex.PW2/A to Ex.PW2/H. 17 This witness was declared hostile by the prosecution and was crossexamined by Ld. Addl. PP for the State. In his cross examination by Ld. Addl. PP, complainant (PW7) denied having stated to the police that two boys came in front of his motorcycle and one out of them told that "sale hamare upar motorcycle chadhayega kya" (would he ride motorcycle on them). He also denied having stated to the police that those boys illegally arrested him and started beating. He has also denied having stated to the police that one of those two boys forcibly took out his mobile phone Nokia model No.C100 containing SIM No.8750811252 which was in the name of his cousin Dhananjay and also took out Rs.1,000/ (two notes in the denomination of Rs.500/) from his shirt pocket. PW7 has also denied having stated to the police that another boy pointed knife upon him and thereafter both the boys started running away from there. He has also denied having stated to the police that on his raising alarm both the accused were apprehended, they threw away mobile phone of PW7 in the traffic jam or that public persons gave beatings to them. PW has SC No.46/2011 State Vs. Irfan @ Kabir etc. Page 10 of 24 also denied having stated to the police that both the boys told their names as Irfan @ Kabir and Babu. He has also denied having stated to the police that amount of Rs.1,000/ was recovered from accused Irfan @ Kabir and one open knife was recovered from accused Babu. He has also denied having stated to the police that he produced both the accused along with cash of Rs.1,000/ and knife to the police or that accused Irfan @ Kabir and Babu were the same persons who had robbed him of Rs.1,000/ and his mobile phone by giving beatings to him and using knife against him or that his statement Ex.PW7/A was read over to him and thereafter he put his signatures at point A. PW7 has also denied having stated to the police that dummy phones were recovered from accused Irfan @ Kabir or that memos were prepared in his presence.
18 In his crossexamination by Ld. Amicus Curiae, PW7 has admitted that police officials met him only at the police station when he had gone there to lodge his complaint for stopping the SIM and secondly when the police officials met him to collect the bill of mobile phone. He has stated that his signatures were taken on several blank papers by the police officials when the bill of mobile phone was collected from him i.e. on 06.10.2011. PW7 has stated that he did not SC No.46/2011 State Vs. Irfan @ Kabir etc. Page 11 of 24 know whether the bill pertaining to mobile was issued in the name of his cousin Dhananjay or not. He has admitted that accused persons were not arrested in his presence or at his instance or that no recovery was effected from them in his presence. During crossexamination by Ld. Counsel for accused Babu, PW7 has stated that he had not signed Ex.PW2/A to Ex.PW2/H. He stated that the documents on which he had signed were not read over to him.
19 There is nothing in the testimony of the complainant Jitender Yadav (PW7) to link the accused persons with the commission of crime of the present case. In his examination in chief, complainant (PW7) categorically stated that he had not seen the face the person who had taken out his mobile phone and cash of Rs.1,000/ from his shirt pocket. He clarified that when there was traffic jam, someone came from behind and took out his mobile pone and cash of Rs.1,000/, but he could not see the face of said person. He has denied that the boys told their names as Irfan @ Kabir and Babu. He has also denied that cash of Rs.1,000/ was recovered from accused Irfan @ Kabir and knife was recovered from accused Babu. He has also denied that he produced both the accused along with cash of Rs.1,000/ and knife to the police. He further denied that accused persons were the SC No.46/2011 State Vs. Irfan @ Kabir etc. Page 12 of 24 same persons who robbed him of Rs.1,000/ and mobile phone. He further denied that both the accused persons were arrested in his presence. Though PW7 has admitted his signatures on the statement Ex.PW7/A during his crossexamination by Ld. Addl. PP for the State, but he clarified that his signatures were obtained on several blank papers by the police officials. He denied that he signed the memos Ex.PW2/A to Ex.PW2/H and has clarified that the documents on which he had signed were not read over to him. He admitted that he met the police officials only at the police station when he went there to lodge the complaint about stopping of his SIM card. He stated that accused persons were not arrested in his presence nor any recovery from them was effected in his presence. Therefore, the testimony of the complainant (PW7) completely exonerates the accused persons as the perpetrators of the crime in the present case. 20 Prosecution has also examined two other public witnesses, namely, Dhananjay (PW1) and Raju (PW11), but as per their testimony, they were not the eyewitnesses of the incident of robbery allegedly taken place with the complainant (PW7). PW1 Dhananjay has also not supported the case of the prosecution that he had given his mobile phone Model C1 to his cousin brother. His SC No.46/2011 State Vs. Irfan @ Kabir etc. Page 13 of 24 testimony is confined only to the effect of mobile phone allegedly robbed by accused persons, but he denied having given his mobile phone to the complainant (PW7). There is nothing in the testimony of this witness to say that the mobile phone allegedly robbed from the complainant was given by him to PW7 and that is too in view of the fact that the complainant (PW7) has not stated in his testimony that the accused persons robbed of his mobile phone.
21 So far as witness Raju (PW11) is concerned, his testimony is of no help to the prosecution to prove the incident of robbery as neither he was present at the spot nor any proceeding of the present case was conducted in his presence. His testimony is with regard to one mobile phone make Sony Ericsson having SIM No. 8860066925 which he stated to have been lost somewhere. The testimony of this witness is of no help to the prosecution to connect the accused persons with the incident of robbery.
22 I have gone through the ratio of judgment of Hon'ble Apex Court in case titled State of UP vs. Shri Krishan AIR 2005 SC 762 in which the acquittal of accused persons was upheld by Hon'ble Apex Court while observing that eye witnesses of the incident have turned hostile and it was not a case to interfere with an order of SC No.46/2011 State Vs. Irfan @ Kabir etc. Page 14 of 24 acquittal.
23 On similar proposition of law, I have also gone through the ratio of judgment in case titled Chellappan Mohandas and others vs. State of Kerala AIR 1995 SC 90 in which the conviction of appellants was set aside as the eye witnesses turned hostile and gave a distorted version.
24 In the present case also, the complainant Jitender Yadav (PW7) has not supported the case of prosecution. Although as per his testimony it stands established that the robbery had taken place with him on the day of incident, but he had not identified accused persons Irfan @ Kabir and Babu as the robbers. He has not identified accused persons as the robbers who robbed the money and mobile phone from him on the day of incident. Therefore, the ratio of judgments in Shri Kishan's case (supra) and case of Chellappan Mohandas' case (supra) is squarely applicable to the facts and circumstances of the present case inasmuch as the eye witness i.e. the victim/complainant has turned hostile and has not supported the case of the prosecution on even a single count.
25 Consequently, the prosecution has failed to establish that accused persons had committed robbery of cash of Rs.1,000/ and SC No.46/2011 State Vs. Irfan @ Kabir etc. Page 15 of 24 mobile phone from the complainant Jitender Yadav (PW7) on the day of incident. Therefore, accused persons are entitled for acquittal for the offence punishable under Section 392/34 IPC. Identity of accused persons 26 The identity of accused persons being the robbers is in dispute. Identification of accused persons has not been established from the testimony of complainant Jitender Yadav (PW7) in the Court. In his entire testimony, complainant/victim Jitender Yadav (PW7) has stated that when he was on his motorcycle and was stuck in the traffic jam, someone came from behind and took out Rs.1,000/ and mobile phone from his shirt pocket. He has categorically stated that he had not seen the person who had taken out cash and mobile phone. During crossexamination, PW7 has specifically stated that accused persons were not the persons who robbed him of his cash and mobile phone. He has even denied that he had produced the accused persons to the police. He has also denied that accused persons were arrested in his presence. He has categorically stated that none of the accused who robbed him and had not identified them in the Court. These circumstances show that accused persons have not been identified by the complainant Jitender Yadav (PW7) as robbers. SC No.46/2011 State Vs. Irfan @ Kabir etc. Page 16 of 24 27 I have gone through the judgment in case of Prem Singh vs. State of (N.C.T.) of Delhi (Crl. Appeal No.589 of 2002 decided by Hon'ble Supreme Court on 24.04.2009) in which it was held that when the witness/injured could not identify the accused to be the person who fired at him, accused could not have been convicted for offence charged. In the present case also, the identity of accused persons being the perpetrators of crime has not been established. The eye witness/victim i.e. complainant Jitender Yadav (PW7) has not identified accused persons as the robbers.
28 Similar is the observation in cases titled Chellappan Mohandas and others vs. State of Kerala (supra) and State of UP Vs. Shri Krishan (supra) with regard to identification of accused. In these cases, the conviction of appellants was set aside as the eye witnesses turned hostile and gave a distorted version. The ratio of above authorities is squarely applicable to the facts of the present case as the sole eye witness i.e. complainant (PW7) has turned hostile and has not deposed anything against the accused persons.
29 Thus, the prosecution has failed to establish the identity of accused persons beyond reasonable doubt being robbers who committed robbery of money and mobile phone of the SC No.46/2011 State Vs. Irfan @ Kabir etc. Page 17 of 24 complainant (PW7).
Use of weapon 30 It is also alleged against accused Babu that he used a deadly weapon i.e. knife at the time of commission of robbery of cash of Rs.1,000/ and mobile phone from the complainant (PW7). 31 The complainant (PW7) who had been robbed had not identified accused persons including accused Babu as robbers in the Court. He has not stated anything against the accused persons that they were the persons who, on the day of incident, robbed him of his cash and mobile phone. The complainant (PW7) has not identified accused persons being the robbers. He has also not stated that any knife was used by accused Babu at the time of committing alleged robbery. He has stated that he had not produced the knife allegedly recovered from accused Babu to the police. He had also denied that no recovery of any weapon or any other article was effected from the accused persons in his presence.
32 Even otherwise, ASI Hanif Khan (PW2) has stated in his deposition that both the accused along with knife and cash of Rs. 1,000/ were produced by the complainant. However, in his cross examination, PW2 has admitted that knife was not recovered from the SC No.46/2011 State Vs. Irfan @ Kabir etc. Page 18 of 24 accused persons in his presence. He has also stated that recovery of currency notes was also not effected in his presence. However, he has added that the knife as well as currency notes were produced by the complainant. Similarly, PW3 Ct. Praveen has also stated that both the accused along with currency notes were produced by the complainant. This witness also in his cross examination has admitted that neither knife nor currency notes was recovered from accused persons in his presence. PW13 SI Rajesh Dangwal, IO in his deposition has stated that both the accused along with one knife allegedly recovered from accused Babu and cash of Rs.1,000/ allegedly recovered from accused Irfan @ Kabir were produced to him by the complainant. The testimony of these police officials is of no help to the prosecution inasmuch as the complainant (PW7) has denied that any recovery was effected from the accused persons in his presence or that he had handed over knife and money to the police.
33 In view of above discussion, I am of the considered opinion that the prosecution has failed to make out any case against accused Babu beyond reasonable doubt that any weapon of offence was used by him.
SC No.46/2011 State Vs. Irfan @ Kabir etc. Page 19 of 24 Recovery of robbed articles 34 Accused Irfan @ Kabir has also been charged under Section 411 IPC. Case of the prosecution is that cash of Rs.1,000/ and mobile phone allegedly robbed by him from the complainant had been retained by him as stolen property and during the process of his apprehension, he threw away the mobile phone in the traffic, whereas robbed cash was recovered from him.
35 The case of the prosecution does not find support from any evidence. First of all, the complainant (PW7) has not stated anything against the accused persons including accused Irfan @ Kabir that they robbed him of his mobile phone and cash of Rs.1,000/ on the day of incident. He has specifically stated that someone came from behind and took out money and mobile phone from his shirt pocket, but he had not seen the said person who had taken away money and mobile phone. Secondly, the said mobile phone and money had not been identified by complainant in the Court nor the same were put to him during his testimony. The complainant has categorically that no recovery of any money or knife from any of the accused was effected in his presence nor he produced the accused persons or money or knife to the police officials.
SC No.46/2011 State Vs. Irfan @ Kabir etc. Page 20 of 24 36 PW7 Jitender Yadav in his testimony has deposed that at the time of committing robbery, someone had taken away cash and mobile phone. However, he has turned hostile to the case of prosecution and has not identified any of the accused in the Court. He has failed to identify accused persons as the persons who committed robbery with him. This witness in his entire testimony has not deposed against accused persons that they committed the robbery of his money and mobile phone. Therefore, this witness has not stated anything that accused persons committed robbery of his money and mobile phone. He has also not stated anything that same were recovered from the possession of accused Irfan @ Kabir. 37 Therefore, in the absence of any evidence with regard to robbery, retention of robbed articles i.e. money and mobile phone by accused Irfan @ Kabir and nonsupporting of the case of prosecution by the complainant (PW7), prosecution has failed to prove its case beyond reasonable doubt that any robbed articles were retained by accused Irfan @ Kabir or the same were recovered from him. Conclusion 38 The identity of accused persons being robbers has not been established in the Court. The complainant (PW7) has stated that SC No.46/2011 State Vs. Irfan @ Kabir etc. Page 21 of 24 accused persons were not the persons who robbed him of his money and mobile phone on the day of incident. He has not identified accused persons as robbers. Therefore, the identity of accused persons being robbers has not been established.
39 The prosecution has failed to establish on record beyond reasonable doubt that accused persons were present at the spot at the time of incident. The case of the prosecution rests upon the testimony of complainant Jitender Yadav(PW7) who has failed to identify accused persons as the culprits who robbed him on the day of incident. No other material has been brought on record by the prosecution to connect accused persons with the commission of robbery of money/ cash and mobile of the complainant (PW7) on the day of incident.
40 The prosecution has further failed to prove beyond reasonable doubt use of deadly weapon by accused Babu at the time of alleged robbery. No incriminating evidence has been produced by the prosecution to connect the accused persons with the robbery and use of deadly weapon by accused Babu. Firstly of all, prosecution has failed to establish that accused persons were amongst the robbers and secondly there is no evidence against the accused Babu that he was SC No.46/2011 State Vs. Irfan @ Kabir etc. Page 22 of 24 armed with any deadly weapon or used the same at the time of commission of alleged robbery.
41 The prosecution has further failed to establish recovery of any robbed articles from accused Irfan @ Kabir as the complainant has not stated anything that he was robbed of his money and mobile phone by any of the accused persons. He has also stated that neither accused persons were arrested in his presence nor any recovery was made from them in his presence.
42 In view of the aforementioned facts and circumstances of the present case that, I am of the considered opinion that the evidence produced by the prosecution does not lead to conclusion that accused persons committed robbery of money and mobile from the complainant Jitender Yadav (PW7) on the day of incident or that accused Babu was in possession of or used any deadly weapon at the time of alleged robbery. Consequently, accused persons are hereby acquitted from the charges framed against them under Section 392/34. Accused Babu is also acquitted of the charge and 397 IPC. Accused Irfan @ Kabir is also acquitted of the charge under section 411 IPC.
SC No.46/2011 State Vs. Irfan @ Kabir etc. Page 23 of 24 43 Accused persons are directed to comply with the provisions of Section 437A of Cr.P.C.
Announced in the open Court ( P.S. TEJI )
Dated: 11.03.2013 District & Sessions Judge(East)
Karkardooma Courts : Delhi
SC No.46/2011 State Vs. Irfan @ Kabir etc. Page 24 of 24