Delhi District Court
State vs . Devender on 2 May, 2019
IN THE COURT OF Ms. SHIVALI SHARMA
CHIEF METROPOLITAN MAGISTRATE
EAST: KARKARDOOMA COURT: DELHI
FIR No. : 326/12
PS : Kalyanpuri
U/S : 382/411/34 IPC and 25 Arms Act.
STATE Vs. Devender
JUDGMENT :
A Unique ID No. of the 6673/16
case
B Name of the Sh. Mantosh Kumar Mishra, s/o Sh.
complainant Jaleshwar Mishra
C Name of the accused
persons & their
parentage and Devender s/o Sh. Sat Pal r/o 15/326,
addresses Kalyanpuri, Delhi.
D Offence Complained of 382/34 IPC
E Date of commission of 23.09.2012
offence.
F Date of Institution 20.02.2013
G Offence Charged 382/411/34 IPC and 25 Arms Act.
H Plea of the accused Pleaded not guilty.
I Order Reserved on 01.05.2019
Date of Pronouncement 02.05.2019
K Final Order Acquitted for offence u/s 382/411/34
IPC and U/s 25 Arms Act.
BRIEF STATEMENT OF THE REASONS FOR THE DECISION PROSECUTION'S CASE FIR No.326/12 State vs Devender Page 1 of 11 1 The story of the prosecution is that on 23.09.2012 at about 12.10 am at park near old PS Kalyanpuri Delhi, within the jurisdiction of PS Kalyanpuri, accused Devender alongwith his two associates (who were found to be juveniles) in furtherance of their common intention committed theft of mobile phone Micromax Colour Black and Rs.1400/- from the possession of complainant Mantosh Kumar Mishra and Rs.1600/- from the possession of victim Sujeet Kumar after having made preparation for causing hurt to them and also wrongfully restrained them in order to committing of the theft. They were also apprehended on the same day at about 8.15 am at Kondli Pul, Delhi and from the possession of accused Devender the mobile phone of the complainant as well as Rs.1000/- were recovered and also one knife without any valid licsense or permit in contravention of notification issued by Delhi Administration was recovered from his possession. Thereby accused Devender is alleged to have committed offences punishable u/s 382/411/34 IPC and Section 25 Arms Act. FIR 2 On the basis of the said allegations and on the complaint (Ex.
PW 3/A) present FIR bearing number 326/12 u/s 382/34 IPC (Ex. PW 1/A) was lodged on 23.09.2012.
NOTICE 3 After investigation, charge-sheet under section 173 Cr. P.C was filed on 20.02.2013.
4 On the basis of the charge-sheet and after compliance of FIR No.326/12 State vs Devender Page 2 of 11 Sec.207 Cr.P.C., a charge for the offence punishable under section 382/411/34 IPC and Section 25 Arms Act was framed against the accused Devender and read out to him, to which he pleaded not guilty and claimed trial on 09.12.2013. PROSECUTION EVIDENCE 5 To bring home the guilt against the accused prosecution has examined 07 witnesses in all:
6 PW1 ASI Veer Pal is a formal witness being the duty officer who proved registration of present FIR as Ex. PW 1/A and endorsement made on the rukka as Ex. PW 1/B. He also deposed that he had lodged D.D. No. 6B at about 12.24 am on 23.9.12 on receipt of information through wireless operator, intercom that four boys had snatched mobile and Rs.3000/- near house no.15/176, Kalyanpuri, Delhi. He proved the copy of said DD as Ex. PA.
7 PW2 Dharmender is a public witness who deposed that on the date of incident (which he does not remember) he was standing on Chowk no.1 Kalyanpuri alongwith his TSR. He had taken two boys to Anand Vihar in his TSR where the said boys took their meal and thereafter he had returned back alongwith them- while he was going towards Gazipur and had reached near police check post, police officials had stopped his TSR. The said boys were searched by the police and two mobile phones alongwith some cash was recovered from them. However, this witness did not identify the accused as one of the said person.
FIR No.326/12 State vs Devender Page 3 of 11He also denied the suggestion that one knife was also recovered from the possession of the said boys. He was also cross examined on behalf of the State but he did not support the case of the prosecution on these aspect.
8 PW3 Mantosh Kumar Mishra is the complainant who deposed that on the date of incident (which he does not remember), three boys had snatched his mobile phone and Rs.4100/- from his and Rs.1400/- from his friend Sujeet Kumar Mishra. His mobile phone was recovered from accused whose case was disposed of.
9 He was declared hostile and was cross examined by Ld. APP for State. In his cross examination he admitted that incident had occurred near the park between 15 and 19 block and one of the robbers had shown him knife and threatened him. He proved his complaint as Ex. PW 3/A. However, he denied the suggestion that accused Devender was apprehended on his identification by the police and his mobile phone, one knife as well as Rs.1000/ were recovered from his possession. Although he admitted his signatures on seizure memo of these articles (Ex. PW 3/A) as well as arrest and personal search memos of the accused (Ex. PW 3/D and E) and the sketch of the knife (Ex. PW 3/C). However, he stated that neither accused Devender was apprehended in his presence nor any recovery was effected from him in his presence. He also stated that accused Devender was not one of the person who had robbed him. He admitted that he had handed over original mobile bill to FIR No.326/12 State vs Devender Page 4 of 11 the police which was seized vide memo Ex. PW 3/F. 10 In his cross examination by Ld. Defence Counsel he categorically stated that accused Devender was not involved in the incident that had occurred with him.
11 PW4 Ct. Bhupinder deposed that on 23.9.12 he was on night patrolling duty. On receipt of a call on wireless set regarding snatching of mobile and money, he reached the spot i.e. near Kalyanpuri Park and met with ASI Om Prakash. On the spot complainant Mantosh and one another person also met them. Complainant narrated the incident to the IO/ASI Om Prakash who recorded his statement and prepared the rukka and handed over the same to him for registration of FIR. He went to the PS and got the FIR registered and returned back to the spot alongwith the copy of FIR and original rukka and handed over the same to IO/SI Om Prakash. Thereafter IO prepared site plan at the instance of the complainant. They searched the accused in Kalyanpuri. While searching the accused at about 8.15 am one TSR bearing no. DL 1 RF 4662 was seen coming from the side of Kondli and on seeing the TSR, complainant told the IO that the persons sitting in the TSR were the robbers who had robbed his mobile phone and money. TSR was accordingly got stopped. Three boys were found sitting in the said TSR who were identified by the complainant as the robbers who had robbed him. One of the said boy was accused Devender on whose search one knife, mobile phone of the complainant and Rs.1000/- were recovered. Other two boys were also searched FIR No.326/12 State vs Devender Page 5 of 11 and recoveries were effected from them. However, they were found to be juvenile. IO arrested and personally searched the accused Devender on the spot. The articles recovered from his possession were seized vide memo Ex. PW 3/B after sealing with the seal of OPS. The sketch of recovered knife Ex. PW 3/C was also prepared by the IO. He identified the case property i.e. the knife (Ex. P-1), mobile phone make Micromax ( Ex. P-2) and currency notes of Rs.500/- ( Ex. P3).
12 PW5 Brijesh Yadav is a summoned witness from JJB who had produced record regarding seizure of recoveries from the juveniles which is not relevant for the decision qua the present accused.
13 PW6 SI Om Prakash is the IO of the case who deposed that on 23.9.12 he was on night emergency duty. At about 12.24 am he received D.D. No. 66B regarding robbery at 15/176 Kalyanpuri. He went to the spot where Ct. Bhupender/ PW 4 who was on night patrolling duty had also reached. His further deposition as regards the registration of present FIR and apprehension of and recovery from accused Devender is in consonance with that of PW 4. He identified the the accused Devender and stated that he was arrested and personally searched vide memos Ex. PW 3/D and E. He also stated that during investigation copy of the original bill of robbed mobile phone ( Ex. P-1) was seized by him vide memo Ex. PW 3/F. 14 PW 7 Vinod Kumar Mishra is the brother of complainant Mantosh who deposed that on 23.9.12 after 12 mid night an FIR No.326/12 State vs Devender Page 6 of 11 incident had occurred with his brother Mantosh and his nephew Sujeet while they were returning from India Gate to their house in which they were robbed of their money and mobile phone by threatening with a knife while they were passing through the park near old PS. As the robbers were escaping they had collided against him as he was in the gali but at that time he was not aware about the incident. By the time his brother Mantosh and nephew Sujeet reached there and informed about the incident, the robbers had already absconded. He immediately made a call to police at 100 no. Police came to the spot and recorded their statement. The mobile phone snatched from complainant was purchased in his name. He identified the original bill of the same which is Ex. P-1. He also stated that he had seen the said three persons while escaping from the spot but categorically stated that accused Devender was not one of the said persons. He was even cross examined by Ld. APP for State on this aspect but he denied the suggestion that accused Devender was also one of the robbers.
15 The other victim Sujit Kumar Mishra could not be traced despite repeated efforts. He was accordingly, dropped from the list of witnesses being untraceable vide order dated 25.4.19. STATEMENT OF ACCUSED 16 Statement of accused Devender was recorded u/s. 313 Cr.P.C.
on 01.05.2019 wherein the entire incriminating evidence proved on record against him was put to him. He stated that he was innocent and falsely implicated in the present case by the police FIR No.326/12 State vs Devender Page 7 of 11 officials in order to solve their case. No recovery was effected from him either of the robbed mobile phone or of any knife. Even the victims had not identified him as one of the robbers.
DEFENCE EVIDENCE 17 The accused did not examine any witness in support of his defence.
18 Final arguments have been heard and record carefully perused.
JUDICIAL RESOLUTION 19 It is a settled proposition of criminal law that prosecution is supposed to prove its case on the judicial file by leading cogent, convincing reliable and trustworthy evidence beyond reasonable doubts. The case of prosecution has to fall or stand on its own legs and it cannot drive any benefit from the weakness if any, in the defence of the accused. It is not for the accused persons to disprove the case of the prosecution and onus to prove the case against the accused beyond reasonable doubts never shifts and it always remains on the prosecution. Further, benefit of doubt in the prosecution story always goes to the accused and it entitles the accused to acquittal.
20 In the present case the eye witness to the incident of theft allegedly committed by accused Devender along with his associates (since/ juvenile) while being in possession of a knife FIR No.326/12 State vs Devender Page 8 of 11 is the complainant Mantosh Kumar Mishra who has been examined as PW 3. Although he supported the case of prosecution regarding the incident that had occurred with him in the intervening night of 2223.09.2012. However, he did not identify the accused Devender as one of the perpetrator of the crime that had occurred with him. He was cross examined at length by Ld. APP for State. But he still did not support the case of prosecution on the point of identification of the accused. Although he admitted his signatures on various documents including the arrest and personal search memos of accused Devender but he categorically stated that he had merely signed the documents on the asking of the IO and the accused Devender was never apprehended or arrested in his presence. In his cross examination by Ld. Defence Counsel he also testified that accused Devender was not involved in the incident. He was merely passing through the road and was wrongly included in this case alongwith other 3 accused persons. 21 The other victim in the present case namely Sujeet Kumar Mishra could no be traced and thus was dropped being untraceable and has not been examined as a witness. 22 PW 7 Vinod Kumar Mishra is also one of the witness who, as per prosecution case, had seen the robbers while they were running away with the robbed articles. He has deposed regarding having seen the robbers escaping from the spot as FIR No.326/12 State vs Devender Page 9 of 11 while escaping they had collided with him but he did not identify accused Devender as one of the said robbers despite cross examination by Ld. APP for State.
23 Accordingly, there is no evidence against accused Devender to prove that he had committed offence u/s 382 IPC as alleged by the prosecution. He is accordingly entitled for acquittal for the said offence.
24 As regards the recoveries of the stolen mobile phone, Rs.1000/ and a knife from the possession of accused Devender, prosecution is relying upon testimony of 4 witnesses which include the complainant Mantosh Kumar Mishra/ PW 3, the auto driver Dharmender/ PW 2, Ct. Bhupinder/ PW 4 and IO SI Om Prakash/ PW 6. Out of these four recovery witnesses, two public witnesses i.e. PW 3 nd PW 2 are completely hostile and have not supported the case of the prosecution regarding the recoveries. While PW 3 categorically denied the apprehension of the accused Devender and his search in his presence, PW 2, although deposed that two persons sitting in his auto were searched by the police and two mobile phones and certain money was recovered from them, but even he did not identify accused Devender as one of the said persons. He also categorically stated that no knife was recovered from the possession of any person sitting in the TSR. The other two recovery witnesses are the police witnesses one of them being FIR No.326/12 State vs Devender Page 10 of 11 the IO. Without support from the testimonies of independent public witnesses, I find it difficult to rely solely on the deposition of PW 4 and PW 6 for giving a finding of guilt against the accused based on the alleged recoveries effected from him. Considering the testimonies of PW 2 and PW 3, the entire case of the prosecution regarding recovery of stolen mobile phone, money and a knife from the possession of accused Devender is clouded with doubt. The benefit of this doubt has to be given to accused. Accordingly accused deserves acquittal even for offences u/s 411 IPC and 25 Arms Act as framed against him. 25 In view of the reasons given above and considering the overall evidence on record, I have no hesitation in holding that the prosecution has miserably failed to prove the offences u/s 382/411/34 IPC and u/s 25 Arms Act as charged against the accused Devender beyond any reasonable doubt. 26 Accused Devender is accordingly acquitted for offence u/s 382/411/34 IPC and Section 25 Arms Act as charged against him.
Digitally signed by ANNOUNCED IN THE OPEN COURT SHIVALI SHIVALI SHARMA Location: East District ON 02.05.2019 Karkardooma Courts Delhi SHARMA Date: 2019.05.02 16:49:41 +0530 (SHIVALI SHARMA) CMM (EAST)/KKD/02.05.2019
Certified that this judgment contains 11 pages and each page bears my signatures.
(SHIVALI SHARMA) CMM (EAST)/KKD/02.05.2019 FIR No.326/12 State vs Devender Page 11 of 11