Delhi District Court
State vs . Mohit @ Man Singh Etc. on 25 October, 2016
IN THE COURT OF SH. GAJENDER SINGH NAGAR, MM-04,
WEST DISTRICT, TIS HAZARI COURTS, DELHI
STATE Vs. MOHIT @ MAN SINGH ETC.
FIR No. 737/2014
PS: MOTI NAGAR
U/S: 392/394/411/34 IPC
JUDGMENT
Sr. no. of the case : 534/2/14
New case no. : 66463/2016
Date of commission of offence : 04.08.2014
Date of institution of the case : 01.10.2014
Name of the complainant : Sh. Aman Verma
Name of accused and address : 1). Mohit @ Man Singh
S/o Sh. Nathu Ram
R/o A-495 Raghubir Nagar,
New Delhi
2). Vivesh @ Kalia
S/o Sh. Kalicharan
R/o A-575, Raghubir
Nagar, 25 Gaj, Delhi.
3). Amit
S/o Sh. Arjun Singh
R/o B-367, JJ Colony,
Raghubir Nagar, Delhi.
Offence complained of or proved : U/s 392/394/411/34 IPC
Plea of the accused : Pleaded not guilty
Final order : Conviction of accused Mohit @
Man Singh and Vivesh @ Kalia
for commission of offence U/s
392/394/34 IPC.
Acquittal of accused Amit.
Date on which reserved for judgment : 18.10.2016
Date of judgment : 25.10.2016
******************************************************************************************************************************* FIR No. 737/2014, PS Moti Nagar Page 1/16 BRIEF STATEMENT OF THE REASON FOR DECISION:
THE FACTS :
1. As per the prosecution, on 04.08.2014 at about 02:45 PM near Chota School, Basai Darapur, Delhi, complainant Aman Verma and his wife Smt. Chanchal Verma, who was pregnant at that time, were coming from Ramesh Nagar Metro Station and were going towards Basai Darapur. Sh. Aman Verma was going ahead of his wife. In the meantime he heard hue and cry raised by her wife, on that he returned and found that 3 boys were robbing belongings of her wife by making her lie on the road. It is stated that two of the assailants ran away from the spot, however, accused Mohit @ Man Singh was apprehended after a brief chase. Later on on the disclosure of accused Mohit, another accused namely Vivesh @ Kalia was also arrested on the same day at around 06:00 PM. On the next day i.e. 05.08.2014 accused Amit was also arrested. During police remand accused Amit got recovered purse of the complainant containing certain documents belonging to the complainant. Accordingly, after the investigation, police filed the present charge sheet against the accused persons.
2. Complete set of copies were supplied to the accused persons. After hearing arguments, charges Under Section 392/394/34 IPC were framed against all the accused persons and alternatively charge Under Section 411 IPC was framed against accused Amit. All the accused persons pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
3. The Prosecution in support of their case has examined following witnesses.
4. PW1 Ms. Chanchal Verma deposed that in the month of August, 2014, she was working at Khyala dispensary as Lab Technician. It is stated that on that day after doing her duty at Tilak Nagar Govt. School, where she was assigned duty, she came to Ramesh Nagar Metro FIR No. 737/2014, PS Moti Nagar Page 2/16 Station, where her husband Sh. Aman Verma met her. Thereafter, she alongwith her husband proceeded towards her house at Basai Darapur.
At about 02.45 pm when they came out of the Metro Station Ramesh Nagar and were going towards Basai Darapur, her husband was proceeding ahead of her, when she reached in front of Govt School Basai Darapur near the parking of the vehicle, one person punched her neck from back side, she could not raise alarm, in the meantime another person came, who pushed her towards a car which was parked there. Due to this she fell down on the sand which was lying on the road. It is stated that both the assailants snatched her purse of purple colour containing visiting card and some money. It is stated that she was in semi-conscious state. It is stated that both the assailants tried to run away from the spot, however, one of them was apprehended by the public. It is stated that she sustained injuries due to which pain started in her neck. It is stated that police official came at the spot. It is stated that she had taken the treatment of her own at her house. This witness correctly identified accused Mohit being the one who pushed her neck and accused Vivesh as the one who had snatched her purse. This witness correctly identified one purse of purple colour containing two photographs, one of the complainant and one of the victim, one visiting card in the name of Aman Enterprises and one copy of office order bearing name of the complainant at serial no. 4. Purse is exhibited as Ex.P1, photographs, order and visiting card are collectively Ex. P2. In her cross-examination, it is stated by her that she did not produce her identity card to the police. It is stated that she reached Ramesh Nagar Metro Station at 02:30 PM. It is stated by her that she was proceeding behind her husband at a distance of 4-5 steps. It is stated that she remained at the spot for about 15 minutes. It is stated that her statement was recorded by the police at the police station. It is stated by her that she was called by the police after 2 days. It is denied by her that Ex.P1 was not snatched by the accused or she purchased a new purse and handed over the same to the police.
FIR No. 737/2014, PS Moti Nagar Page 3/165. PW2 Sh. Aman Verma deposed that in the year 2014, he along with his wife Chanchal Verma were coming from Ramesh Nagar Metro Station and going towards his house at Basai Darapur, they were on foot, he was proceeding just ahead of his wife. When they reached near school, he heard the noise by public persons 'loot liya, loot liya'. On that he turned back and saw that his wife was lying on the sand on the road. One person was chasing accused Mohit, on that he also started chasing and apprehended accused Mohit with the help of public. It is stated that accused Vivesh @ Kalia successfully fled away from the spot. This witness also correctly identified accused Vivesh @ Kalia. It is stated that he called the police at 100 number. Police official came at the spot and he handed over accused Mohit to the police. It is stated that both the accused persons had snatched the purse and chain from his wife. It is stated that chain was left at the spot and purse was taken away by the accused Vivesh @ Kalia. Police official recorded his statement, which is Ex. PW2/A. Police official prepared the site plan at his instance, which is Ex. PW2/B. It is stated that accused Mohit was arrested vide arrest memo Ex. PW2/C. Personal search of accused Mohit was conducted vide memo Ex. PW3/D. It is stated that on the same day accused Vivesh was apprehended. The personal search of accused Vivesh is Ex. PW3/E. It is stated that the purse was recovered from accused Amit and same was taken into possession vide seizure memo Ex. PW3/F. This witness correctly identified the case property i.e. purse Ex. P1 and documents, photographs, visiting card collectively Ex. P2. In his cross-examinations, it is stated by him that he reached the spot of accident from Metro Station at about 03:00 PM. It is stated that he called at 100 number, on that police reached within 10-15 minutes at the spot. It is stated that police officials remained at the spot for about 15 minutes. It is stated that first of all police apprehended accused Mohit. It is stated by him that his complaint Ex.PW2/A is not in his handwriting. It is stated that distance between him and his wife was 20 paces. It is stated that there were a lot of public persons present at the spot at the time of incident. It is stated that IO did not record statement FIR No. 737/2014, PS Moti Nagar Page 4/16 of any public person in his presence. It is stated that his statement was recorded in the police station. It is stated that police officials prepared site plan at the spot. He could not tell the time when site plan was prepared. It is stated that his wife was also present at the spot when site plan was prepared and only one police official i.e. IO was present when site plan was prepared. It is stated that from the spot he went to the police station, however, his wife went to home as she was very disturbed.
6. PW3 HC Raj Singh was the duty officer and MHC(M), who exhibited on record carbon copy of FIR as Ex.PW3/A (OSR) and endorsement on the rukka as Ex.PW3/B. This witness also received a call regarding apprehension of thieves at Basai Dara Pur and he recorded the same in roznamcha vide DD no. 28A dated 04.08.2014. The extract of said DD no. 28A is Ex. PW3/C. He handed over copy of FIR to ASI Daya Chand for investigation of the case. It is further deposed that on the same day he handed over one purse in a pullanda sealed with the seal of ML and deposited the same in Malkhana vide entry no. 3033/14 in register no.
19. The photocopy of the same is Ex. PW3/D. In his cross-examination, it is stated by him that he received the information firstly vide DD no.28A at 02:53 PM through PCR call.
7. PW4 Ct. Shiv Singh deposed that on 04.08.2014 he was posted at PCR, ITO. On that day, he was on duty at PCR on channel no. 144. It is stated that on 04.08.2014 at about 02.44 PM a call was received regarding apprehension of a thief near Chota School, Basai Dara Pur. Thereafter, he forwarded the information on wireless. This witness exhibited the attested copy of PCR form as Ex. PW4/A along with the certificate u/s 65B of Indian Evidence Act given by the Nodal Officer which is Ex. PW4/B.
8. PW5 ASI Madan Lal deposed that on 04.08.2014 on receipt of DD no. 28A he along with Ct. Gaekwaad reached at Chhota School, Basai Darapur. The above said DD was with regard to the apprehension of accused at the above stated place. It is stated that on reaching at the FIR No. 737/2014, PS Moti Nagar Page 5/16 spot it was found that several public persons were gathered there and at the same time complainant namely Aman Verma was present there and he handed over to him accused Mohit @ Man Singh, who was under intoxication at that time. This witness correctly identified accused Mohit @ Man Singh. It is stated that at the spot he recorded the statement of complainant, which is Ex. PW2/A and the same was attested by him. At that time, the wife of the complainant namely Chanchal was present at the spot and she was pregnant and also in fear due to the alleged accident. It is stated that then at his direction she was sent to her home. In his statement complainant apprised him that assailants had snatched ear rings, gold chain from the possession of his wife. Later on, the wife of the complainant stated that she usually wears the ear rings and gold chain, however, she was having a purse at that time, which was robbed by the assailants. Then on the statement of complainant rukka was prepared and sent to PS Moti Nagar through Ct. Gaekwaad for the registration of FIR. The rukka is Ex. PW5/A. At the instance of complainant the site plan was prepared, which is Ex. PW5/B. In the meantime, Ct. Gaekwaad returned at the spot after registration of FIR alongwith original rukka and copy of FIR. Thereafter, accused Mohit @ Man Singh was arrested vide arrest memo Ex.PW2/C. After the arrest of accused Mohit @ Man Singh, his personal search was conducted vide memo Ex. PW3/D. It is stated that at that time, he recorded the disclosure statement of accused Mohit @ Man Singh, which is Ex. PW4/A. Thereafter, other two accused persons were searched nearby the spot, consequent to that accused Vivesh @ Kalia was found from a park at Basai Dara Pur, who was also under intoxication. It is stated that accused Vivesh @ Kalia was apprehended at the instance of complainant and was arrested vide the arrest memo Ex. PW4/G, personal search memo Ex. PW3/E, his (accused Vivesh @ Kalia) disclosure statement is Ex. PW4/H. Pointing out memos were also prepared at the instance of accused Vivesh @ Kalia and accused Mohit @ Man Singh, which are PW4/F and PW5/B. Search were made for the third assailant, however, he could not be found on that day.
FIR No. 737/2014, PS Moti Nagar Page 6/16Thereafter, accused Mohit @ Man Singh and accused Vivesh @ Kalia were taken to PS after conducting their medical examination and put behind the bars. It is further deposed that on 05.08.2014 he went to Basai Dara Pur for investigation of the present case, where he met the complainant. Thereafter they rushed towards the same park from where accused Vivesh was apprehended. At the instance of complainant accused Amit was also apprehended and arrested at the spot. Accused Amit was arrested vide arrest memo Ex. PW4/B, personally searched vide memo Ex. PW4/C, his disclosure statement is Ex.PW4/D and pointing out memo is Ex.PW4/E. During the interrogation accused Amit disclosed that he had thrown the purse which he had snatched along with accused Mohit @ Man Singh and accused Vivesh @ Kalia in the surrounding areas. The purse was searched, however, it could not be found on that day. Thereafter, accused Amit was taken to PS after his medical and put behind the bars. On the same day, all the accused persons were produced before the Court, one day PC Remand of the accused persons was sought. It is deposed that on 06.08.2014, accused Amit got recovered the stolen purse from near the nala at Basai Dara Pur. The purse was containing two photographs of complainant and his wife, visiting cards and one another document pertaining to the complainant's wife. At the same time accused Amit disclosed that the money which they had found from the purse have been spent. The purse was wrapped in a white cloth and the same was sealed with the seal of ML. At the same time, the site plan of the place of recovery was prepared, which is Ex. PW2/B. The recovered purse was seized vide seizure memo Ex. PW3/F. During the investigation of the present case he recorded the statement of witnesses and after competition of investigation filed the charge sheet before the court. In his cross-examination, it is stated by him that he reached the spot around 03:00 PM, where 4-5 public persons were present alongwith accused Mohit and complainant. It is stated that he recorded statement of the complainant. It is stated that he requested public persons to join the investigation but they refused. It is stated that no notice was given FIR No. 737/2014, PS Moti Nagar Page 7/16 by him to any such public person. It is stated that victim Chanchal Verma had already left the spot as she was pregnant at that time and was not feeling well. It is stated that he recorded statement of the complainant at the spot. It is stated that he remained at the spot for half an hour. It is stated that he sent Ct. Gaekwad with rukka at about 05:15 PM, who returned at 05:45 PM with FIR. It is stated that he prepared the site plan at 06:00 PM. It is stated that victim Chanchal Verma was returned to the spot when site plan was being prepared, however, he had not taken signatures of Chanchal Verma on the same. It is stated that no public person was joined at the time of arrest of accused Vivesh or accused Amit, however, complainant was accompanying him at the time of both the arrest. It is stated by him that he had not taken the photographs of the spot from where purse was recovered. It is stated by him that purse was recovered in the presence of the complainant, hence his judicial TIP was not got conducted. It is stated by him that the recovered purse was looking new.
9. PW-4 Ct. Gaekwaad deposed on the same lines as PW5 ASI Madan Lal, though it is stated by him that accused Amit was arrested at the instance of accused Mohit on the same day. It is further stated that on the next day accused Vivesh was arrested, though it is stated by him that purse was recovered at the instance of accused Amit. In his cross- examination, it is stated by him that they reached the spot at 02:45 PM. It is stated that 40-50 public persons collected at the spot. It is further stated by him that they remained at the spot for two and a half hour and reached PS at about 06:00 PM. It is further stated that IO handed over the rukka to him at 02:30 PM and he returned at the spot with FIR at 02:45 PM. It is stated that accused Amit was arrested at 05:30 PM. It is stated by him that the purse was recovered in presence of victim Chanchal Verma and she identified the purse at the time of recovery.
10. No other witness was left to be examined, hence prosecution evidence was closed.
FIR No. 737/2014, PS Moti Nagar Page 8/16THE DEFENCE :
11. Statement of accused persons were recorded U/s 313 Cr.P.C, wherein they pleaded their innocence and stated that they have been falsely implicated in the present case. It is stated by accused Mohit @ Man Singh that he has been falsely implicated in the present matter as he was earlier involved in two other cases, hence named in the present case just to solve the matter. It is stated by accused Vivesh @ Kalia and Amit that they were apprehended from their house and the case has been planted on them. Accused persons opted not to lead defence evidence.
THE ARGUMENTS:
12. Ld. APP for state has argued that eye witnesses have supported the prosecution and their testimony have remained unrebutted. That on a combined reading of testimonies of prosecution witnesses, offence under section 392/394/34 IPC as well as 411 IPC are proved beyond reasonable doubt.
13. On the other hand, Ld. Counsel for accused persons have stated that there is no legally sustainable evidence against the accused persons. They have been falsely implicated in the matter. There are a number of contradictions in the testimonies of prosecution witnesses which entitle the accused persons acquittal in the present case.
THE FINDINGS:
Offence U/s 392/394 read with 34 IPC & 411 IPC:
14. The undersigned has heard arguments adduced by Ld. APP for State, Ld. Defence Counsel for the accused persons and perused the evidence and documents on record carefully.
15. In order to prove guilt of the accused persons the prosecution is required to prove the following:-
i). All the accused persons wrongfully restrained the victim Chanchal Verma in furtherance of their common intention.FIR No. 737/2014, PS Moti Nagar Page 9/16
ii). They caused simple hurt to her by punching on her neck and pushing her down on the road.
iii). They had robbed her purse containing money and her other belongings.
iv). After two days of the alleged incident, the purse was recovered at the instance of accused Amit.
16. PW1 Smt. Chanchal Verma and PW2 Sh. Aman Verma are the most material witnesses in the present case. They have fully supported the prosecution case. They have categorically stated on the lines of original complaint. Both of them have deposed emphatically on oath that when they were returning to their home from Ramesh Nagar Metro Station, PW2 Aman Verma was going ahead and his pregnant wife PW1 Smt. Chanchal Verma was following him, in the meantime accused Mohit punched and pushed the neck of Smt. Chanchal Verma from behind. The assailants pushed her towards a parked car due to which she fell down on the road. Thereafter, accused Vivesh snatched her purse. It is further stated that on the hue and cry raised by PW1 Smt. Chanchal Verma and the public persons, PW2 turned back and found that accused persons were fleeing away from the spot, however, PW2 with the help of public persons managed to apprehend accused Mohit at the spot. Later on, after some time accused Vivesh was also arrested at the instance of the complainant. Both the eye witnesses correctly identified accused Mohit @ Man Singh as well as accused Vivesh. PW1 Smt. Chanchal Verma vividly described the role of both the accused persons as it is stated by her that accused Mohit pushed her neck and Vivesh snatched her purse. Testimony of both of them is consistent on all the material aspects. The testimony of these witnesses remained unrebutted during cross-examination. Testimonies of PW1 and PW2 are fully supported on all material aspect by testimonies of PW4 Ct. Ram Gaekwad and PW5 ASI Madan Lal.
17. Hence, it can be seen that there are categorical statements made by the PW1 and PW2 implicating the accused Mohit and Vivesh in the FIR No. 737/2014, PS Moti Nagar Page 10/16 present case. There is no reason or motive for the PW1 and PW2 to falsely implicate the accused Mohit and Vivesh in the present case. The evidences of PW1 and PW2 are natural and consistent and to the point. Further, nothing material could be extracted by the defence counsel even in the cross-examination of public witnesses PW1 and PW2. Further, their depositions are fully supported from the evidence of police witnesses.
18. Both, PW1 and PW2 have categorically identified accused Vivesh and Mohit as the culprits, who robbed PW1 Chanchal Verma, thus identity of accused Mohit @ Man Singh and Vivesh as the offender of the crime has been duly established.
19. In the statement of accused persons U/s 313 Cr.P.C, nothing except bald denial has surfaced when the incriminating evidence aforesaid was put to them. All what was stated by the accused persons in their statement U/s 313 Cr.PC is that they were falsely implicated in the present case. However, no motive has been brought on record as to why public witnesses PW1 and PW2 would depose falsely against the accused persons and why would they falsely implicate the accused persons in the present case. Absolutely nothing has come on record to discredit the testimony of PW1 and PW2 and other PWs, hence, reliance can be placed on their testimony.
20. Ld. defence counsel has pointed out that there are inconsistencies in the testimonies of PW1 and PW2 as it was stated by PW1 that her purse was robbed by the accused persons, on the other hand it is deposed by PW2 that apart from the purse chain of her wife was also snatched by the accused persons, however, they (accused persons) left the chain at the spot. It is also argued that even in the complaint it was stated by complainant PW2 that chain, ear rings and purse of her wife were robbed. On the other hand it was stated by Chanchal Verma that only her purse was robbed. These are insignificant contradictions and such insignificant contradictions cannot throw away the unrebutted testimony of the complainant and the victim, who had no reason to FIR No. 737/2014, PS Moti Nagar Page 11/16 falsely implicate the accused persons. Further, in his supplementary statement given to the police, it was explained by the complainant that his wife PW1 Chanchal Verma used to wear gold chain & ear rings due to that he got the impression that her chain and ear rings were also robbed.
21. It is further pointed out by Ld. defence counsel that PW1 has stated that incident had taken place at about 02:45 PM, while it is stated by PW2 that incident had taken place at about 03:00 PM, while it is stated by PW4 Ct. Ram Gaekwad that DD was received at about 02:00 PM to ASI Madan Lal. However, it is stated by ASI Madan Lal that he reached the spot at 03:00 PM. Inability on the part of PW4 Ct. Ram Gaekwad to tell the correct time of incident and reaching the spot will not affect the prosecution case as all other witnesses have given the consistent time of the incident and arrival of the police at the spot. These inconsistencies do not affect the core of the prosecution case, hence the same can not be made a ground on which the evidence can be rejected in its entirety. In State of U.P. v. Naresh(2011) 4 SCC 324, the Hob'ble Apex Court held:
"In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.... Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility."
22. Ld. defence counsel raised a point that it is stated by both PW1 and FIR No. 737/2014, PS Moti Nagar Page 12/16 PW2 that their statements were recorded at the police station, on the other hand it is claimed by PW5 IO ASI Madan Lal that he recorded statements of the victim and the complainant at the spot. Thus, it is contended that there is contradiction on this point in the testimony of eye witnesses and the IO. It is also contented that no MLC of victim Chanchal Verma was got prepared to show that she received injury in the alleged incident. Conducting part of the proceedings at the police station cannot be termed as a faulty investigation, further, failure on the part of the IO to get the victim medically examined will not belie the testimony of the victim who has stated that she was punched and pushed on the ground by the accused persons. It is established principle of law that the complainant/ victim shall not suffer due to the conduct of the IO and the accused shall not be allowed to take benefit of the faulty investigation of the IO. It has been held by the Hon'ble Supreme Court in case titled as Ganga Singh Vs. State of Madhya Pradesh (2013) 7 SCC 278 that:
"The settled position of law is that the prosecution is required to establish the guilt of the accused beyond reasonable doubt by adducing evidence. Hence, if the prosecution in a given case adduces evidence to establish the guilt of the accused beyond reasonable doubt, the Court cannot acquit the accused on the ground that there are some defects in the investigation, but if the defects in the investigation are such as to cast a reasonable doubt in the prosecution case, then of course the accused is entitled to acquittal because of such doubt."
23. In the present case testimonies of PW1 and PW2 have established the guilt of the accused Mohit and Vivesh beyond any reasonable doubt, hence, above stated defects in investigation cannot throw away the entire prosecution case.
24. The contention of the defence that none of the public persons, who helped the complainant to apprehend accused Mohit or were present at the spot have been made witnesses in the case is not material. It is a known fact that in a city like Delhi generally the public persons do not come forward to be a part of any criminal investigation. In the case of Appabhai Vs. State of Gujrat AIR 1988 SC 696, it has been held as FIR No. 737/2014, PS Moti Nagar Page 13/16 under:-
"It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused."
25. Hence, adverse inference cannot be drawn on account of failure of the police officials to join independent public persons apart from complainant and victim. It is settled law that conviction can be based on the testimony of a single witness or even of police witnesses and it is not necessary that in each and every case, public witnesses must be joined. It was held in Pal Singh And Ors. vs State Of U.P. AIR 1979 SC 1116 that:
"after the High Court had believed the eye witnesses No. 1 and 2, and having found that their testimony was absolutely credit worthy and truthful, it could not have rejected the prosecution case merely because some of the eye witnesses mentioned in the F.I.R. were not examined."
26. Now let us examine the role and evidences against accused Amit. It is to be noted that neither PW1 Smt. Chanchal Verma nor PW2 Sh. Aman Verma have stated that they have seen accused Amit at the spot at the time of alleged incident of robbery. Thus, there is no direct evidence of the involvement of accused Amit in commission of offence punishable U/s 392/394/34 IPC. The only allegation against accused Amit left is that after two days of the alleged incident he got recovered the purse alongwith FIR No. 737/2014, PS Moti Nagar Page 14/16 other belongings of the victim and complainant from near the ganda nala. Admittedly the place of recovery was a public place. Since, the alleged place of recovery was ordinarily visible to others as it was an open public place, hence the evidence of recovery is vitiated and the recovery cannot be used as an evidence against the accused Amit (Reliance being placed on State of HP Vs. Jeet Singh AIR 1999 SC 1293). Further, though it is stated by PW5 IO SI Madan Lal that complainant (PW2) was present at the time of recovery of the purse, on the other hand it is stated by PW4 Ct. Ram Gaekwad that PW1 victim was present at the time of recovery of the purse. Furthermore, PW2 simply stated in his examination that purse was recovered from accused Amit, he did not describe from which place accused Amit got the purse recovered. In such situation, when the only evidence against the accused Amit is the recovery of purse but the same is vitiated as stated above, hence there is no evidence at all on record to convict the accused Amit for commission of offence U/s 392/394/34 IPC or alternatively for offence U/s 411 IPC. Thus, accused Amit deserves acquittal in the present case from all the charges.
27. In the case in hand, this Court found the testimony of PW1 and PW2 absolutely credit worthy and truthful. The truthfulness of testimonies of PW1 and PW2 also strengthen from the fact that they have not implicated accused Amit in the incident of alleged robbery, had they were deposing falsely they could have easily stated that accused Amit was also present at the time of robbery and successfully fled away from the spot. Hence, on the basis of above stated evidence, in the considered opinion of this court the prosecution is able to prove on record beyond reasonable doubt that the incident in question took place. The offence of robbery of a purse coupled with causing hurt to the victim PW1 Smt. Chanchal Verma by punching her on neck and pushing her down on the road has been proved. Since the act was done by accused Mohit @ Man Singh and accused Vivesh @ Kalia in furtherance of their common intention, hence both of them are liable to be convicted for commission of offence punishable under section 392/394 IPC read with Section 34 IPC.
FIR No. 737/2014, PS Moti Nagar Page 15/1628. Thus, in the considered opinion of this Court, all the ingredients of Section 392/394 read with 34 IPC are satisfied. As such accused Mohit @ Man Singh S/o Sh. Nathu Ram and accused Vivesh @ Kalia S/o Sh. Kalicharan are hereby convicted for the offence punishable under Section 392/394 IPC read with Section 34 IPC. Since prosecution failed to prove its case against the accused Amit, hence accused Amit is hereby acquitted from all the charges in the present case.
29. Section 437 A Cr.P.C has been complied with in respect of accused Amit as his previous bail bond/surety bond extended.
30. Copy of judgment be provided to accused Mohit @ Man Singh and Vivesh @ Kalia free of cost.
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR) COURT ON 25.10.2016 MM-04 (WEST)/DELHI
Containing 16 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM-04 (WEST)/DELHI FIR No. 737/2014, PS Moti Nagar Page 16/16