Delhi District Court
Ndps Act:(Central District):Tis ... vs Ganesh Kumar on 19 August, 2017
1 IN THE COURT OF SH.NARINDER KUMAR:SPECIAL JUDGE2 NDPS ACT:(CENTRAL DISTRICT):TIS HAZARI COURT:DELHI Case No. 27769 FIR No. 126/15 PS Kotwali U/s 392/397/34 IPC State Versus 1. Ganesh Kumar S/o Sh.Ramesh, R/o H.No.112, Gali no.1, Village Motichur, Bhopatwala, Haridwar, Uttrakhand. 2. Deepak Sharma S/o Sh. Raj Kumar, R/o Village Khadlana, District Saharanpur, U.P. Date of Institution : 18.5.2015 Date of Judgment : 19.08.2017 State v. Ganesh etc. 2 JUDGMENT
Ganesh Kumar and Deepak Sharma, the above named accused have been facing trial for offences u/s 392 r.w. section 34 IPC and 397 IPC on the accusation that on 5.2.2015 at about 8:30 p.m, they and their two companions (juveniles) in furtherance of their common intention did commit robbery by removing a sum of Rs.2000/ and some documents from Mohd. Ahmed complainant, who was proceeding on the road, with his companion Sakir, near Chhata Rail Chowk, SPM Marg, Delhi,within the jurisdiction of Police Station Kotwali. At the time of commission of robbery, Deepak Sharma accused is alleged to have used a knife.
2. Case of the prosecution is that immediately after the occurrence, Sakir companion of the complainant raised alarm and then informed PCR whereupon PCR informed the local police of the State v. Ganesh etc. 3 occurrence. SI G.N.Tiwari accompanied by Ct.Sunil reached the spot and recorded his statement which led to registration of this case.
3. It was thereafter that complainant accompanied the party headed by SI G.N.Tiwari and they succeeded in apprehending the two accused and two others (Juveniles) from in front of Vankhandi Mandir. Further, it is case of prosecution that two juveniles and the present two accused were found in possession of Rs.500/ each. Deepak Sharmaaccused was also carrying a knife. SI G.N.Tiwari conducted search of items, seized them after having turned them into sealed parcels. Accused persons were arrested and juveniles were apprehended.
4. On completion of investigation, challan was put in court.
5. After compliance with provisions of Section State v. Ganesh etc. 4 207 Cr.P.C, case came to be committed to Court of Session.
6. Prima facie case having been made out my Ld. Predecessor on 17.9.2016 framed common charge for offences u/s 392, 397 and section 34 IPC and when accused pleaded not guilty, prosecution was called upon to lead evidence.
7. In order to prove its case, prosecution has examined following 4 witnesses: PW1 HC Ram To prove recording of FIR Lakhan PW2 Mohd. Complainant Ahmed PW3 Ct.Sunil Member of the party which apprehended the accused and juvenile PW4 SI G.N.Tiwari Investigating Officer State v. Ganesh etc. 5
8. When examined u/s 313 Cr.P.C, both the accused persons have denied all the incriminating circumstances appearing in evidence against them and claimed false implication.
According to Deepak Sharmaaccused, he was picked up from the area of Chandni Chowk while he was to go to Jahangir Puri.
Ganeshaccused pleaded that he was picked up from near Old Delhi Railway Station and falsely implicated in this case.
However, accused persons opted not to lead any evidence in defence.
9. Arguments heard. File perused.
As noticed above, mainstay of prosecution is on the statements of PW2 Mohd. Ahmed, PW3 Ct.Sunil and PW4 SI G.N.Tiwari.
State v. Ganesh etc. 6 PW2
10. As regards the occurrence, PW2 Mohd. Ahmed narrated the manner in which it took place in the month of February, 2015 after he and his companions alighted from train at Old Delhi Railway Station and they were moving on foot towards bus stand, Chhata Rail Chowk as they were to take bus for Bhajanpura.
Further according to PW2, four boys met them. Three of them placed knife against his neck, back and stomach whereas fourth removed his purse which contained Rs.2000/ and some documents.
It is also in the statement of PW2 that police reached the spot after his companion informed PCR staff and recorded his statement. He further deposed about site plan prepared at his pointing out.
As regards identity of the assailants, PW2 did not identify any of the two accused as the assailants. He had a round in the court room but he was unable to State v. Ganesh etc. 7 identify any of two accused. Thereupon, Ld. Addl.Public Prosecutor put leading questions to the witness but nothing useful to the prosecution could be elicited from him as regards the involvement of the two persons present in the court as accused persons. It is in his statement that after the assailants were arrested, police did not enquire from them the names and particulars in his presence, the reason being that he and Sakir had left for their house. He further denied that names and particulars of accused and their companions were enquired by the police in his presence or that two accused were also amongst them.
As regards recovery of currency notes, the witness displayed ignorance if Rs.500/ were recovered from Deepak Sharma or Rs.500/ recovered from Ganesh in his presence. He also displayed ignorance about recovery of currency notes from any other persons in their presence and even about recovery of knife from Deepak Sharmaaccused.
State v. Ganesh etc. 8 PW2 categorically denied the suggestion put by Ld. Addl. Public Prosecutor that he was intentionally displaying ignorance about recovery of knife or intentionally not identifying the persons present in court as accused, he having been won over by them.
From the above statement of PW2, Court finds that he has not supported the case of prosecution as regards involvement of the two persons present in court as accused.
PW3 & PW4
11. Then, there are statements of PW3 Ct.Sunil and PW4 SI G.N.Tiwari. Both of them have deposed about recording of statement of complainant which led to registration of this case. But, as regards the arrest of the accused and apprehension of their two companions, Ld. Amicus Curiae has rightly pointed out that there are material contradictions in the statements of these two witnesses and as such no reliance can be placed on their State v. Ganesh etc. 9 statements when PW2 complainant has not supported the version narrated by them.
As noticed above, according to the complainant, he was accompanied by Sakir. In this situation, PW4 SI G.N.Tiwari should have recorded statement of the associate of the complainant as well, but his statement was admittedly not recorded. According to PW4, he did not record statement of Sakir as he was not a witness to the robbery.
Even if Sakir had not witnessed the robbery actually taking place, the SI should have recorded his statement to lend corroboration to the statement of the complainant that both of them were moving towards bus stand when the occurrence took place, and further that the complainant had informed the PCR. Non examination of SI G.N.Tiwari goes to show the manner in which he investigated the matter.
As regards arrest of the two accused and two juveniles according to PW3, he and SI G.N.Tiwari had State v. Ganesh etc. 10 searched for them near Gurdwara Sisganj and platform no.1, Old Delhi Railway Station but they were not present there and it was only after the secret informer met the Sub Inspector that they returned to Police Station Kotwali and again left in search of the accused about 23 hours thereafter. On the other hand, PW4 SI G.N.Tiwari stated that they searched four offenders outside Railway Station, at Chandni Chowk, and at Labour Chowk. He did not state to have gone to platform no.1, Old Delhi Railway Station in search of the offenders.
Further, according to PW4, secret informer met him at about 4:30 a.m near Old Lajpat Rai Market. On the other hand, according to PW3 Ct.Sunil, IO had received a call from secret informer and thereafter, they reached Old Delhi Railway Station and in front of Vankhandi Mandir in front of Railway Station. So, PW2 has not stated about the secret informer personally meeting the Sub Inspector. This is a material State v. Ganesh etc. 11 contradiction which creates doubt in the version put forth by the prosecution, as to how the two police officials came to reach Vankhandi Mandir and apprehended four boys from there.
12. Case of prosecution is that all the four boys including the two accused were sleeping on the footpath of Vankhandi Mandir. According to PW3, about 20 persons were sleeping on the footpath. PW3 further cited that some of the 20 persons sleeping on the footpath had covered their faces with one or the other cloth but PW4 displayed ignorance if those persons had covered their faces with blanket or not. PW3 could not tell as to who had caught hold of which of the accused and their companions. As noticed above, PW2 complainant has not supported the case of the prosecution regarding apprehension/arrest of the two accused persons and companions. He has also not identified them as the offenders. Further, he has not State v. Ganesh etc. 12 supported the case of prosecution regarding recovery of currency notes from anyone of them.
Undisputedly, in the seizure memos, SI G.N.Tiwari did not note down the number of currency notes said to have been recovered from the two accused and their companions. He also did not put any specific mark of identification on the currency notes.
When there is no corroboration from independent source including the complainant on the point of arrest of the accused persons and recoveries from them, no reliance can be placed on the statements of these two police officials, which are full of contradictions on material aspects.
13. In view of the above discussion, finding merit in the contention raised by Ld. Amicus Curiae, Court holds that prosecution has failed to bring home guilt against any of the two accused regarding their involvement in the occurrence I.e. robbery of Rs.2000/ State v. Ganesh etc. 13 and documents from the complainant on 5.2.2015 near Chhata Rail Chowk, SPM Marg, Delhi. As a result both of them are acquitted in this case.
Currency notes are stated to have already been got released by the complainant on superdari. Knife Ex.P1 be destroyed in accordance with law on expiry of period for appeal/revision, if none is preferred or subject to decision thereof. File be consigned to record room.
Announced in the open Court on this 19th day of August, 2017 (NARINDER KUMAR) SPECIAL JUDGE2 NDPS ACT (CENTRAL DISTRICT) TIS HAZARI COURT:DELHI State v. Ganesh etc.