Delhi District Court
State vs . Balbir Singh on 4 July, 2012
: 1 :
IN THE COURT OF MS. SUNENA SHARMA MM-08
WEST DISTRICT, TIS HAZARI COURT
State Vs. Balbir Singh
FIR No. 188/09
PS: Kirti Nagar
U/S: 356/379/34 IPC
Sr. no. of the case : 18/1
Date of commission of offence : 08.07.2009
Date of institution of the case : 25.01.201
Name of the complainant : Sh. Shish Ram
Name of accused and address : Balbir Singh
S/o Sh. Hakam Singh
R/o 118, Village Nilothi
Extension, Arya Nagar,
Nangloi, Delhi.
Offence complained of or proved:U/S 356/379/34 IPC
Plea of the accused : Pleaded not guilty
Final Order : Acquitted
Date of judgment : 04.07.2012
J U D G M E N T:
1. The present FIR is based on the complaint of Sh.
Shish Ram which is available on record as Ex.PW2/A. As per Ex.PW2/A, the prosecution story in brief is that the complainant was working as Deputy Salesman at Siyal Service Station/ Petrol Pump. On the intervening night of 08.07.2009 and 09.07.2009 at about 11.30p.m. complainant was on duty at the said Petrol FIR No. 188/09 State Vs. Balbir Singh : 2 : Pump and he was filling diesel in the vehicles coming on the Petrol Pump and had been keeping the cash in the right side pocket of his trouser. In the meantime, one motorcycle with two riders came beside him and the person sitting on the rear seat snatched cash from the pocket of the complainant upon which complainant raised alarm "Cash Chhin Liya, Cash Chhin Liya" and chased the said motorcycle. Complainant caught hold of the person sitting on the rear seat of the said motorcycle and in the meantime, one another scooter with two riders came from behind and riders of said scooter started threatening the complainant to leave the bike riders. Further that, the pillion rider of said scooter was a Sardar and he after getting down from said scooter came towards complainant and asked the other accused to stab the complainant with a knife. In the meantime, said Sikh boy was apprehended by the other co-worker Sudama with the help of other customer and upon inquiry said boy revealed his name as Balbir Singh. The accused was beaten up by the public persons on the spot but the co-accused fled away from the spot with cash of Rs. 9/10 thousand which was snatched from the pocket of the complainant. In Ex.PW2/A, the complainant further stated that he could identify the other accused persons, if shown to him. On the aforesaid statement of the complainant, IO prepared rukka Ex.PW7/B and FIR No. 188/09 State Vs. Balbir Singh : 3 : got the FIR Ex.PW3/A registered on 09.07.2012.
2. However, perusal of file shows that despite efforts, IO could not trace out the other accused persons involved in offence and only accused Balbir Singh was charge sheeted before the court on 25.01.2011. On filing of charge sheet, cognizance was taken by the court and the accused was summoned.
3. Vide order dated 26.05.2011 charge for the offence U/s 356/379/34 IPC was framed against the accused Balbir Singh to which he pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution examined seven witnesses namely HC Bhagat Ram, Shish Ram (complainant), ASI Suresh Kumar, Ct. Ashok Kumar, Ct. Sunil Kumar, Sudama Pandey (another eye witness) and SI O.P. Mandal (IO of the case) as PW1 to PW7 respectively. After completion of prosecution evidence, statement of accused was recorded U/s 313Cr.P.C. wherein all the entire incriminating evidence was put to the accused to which he stated that he was innocent and had been falsely implicated in this case.
5. I have heard Ld. APP for State and Ld. defence counsel and also perused the entire record carefully.
6. For securing the conviction in a criminal case, prosecution has to prove two things. Firstly, the FIR No. 188/09 State Vs. Balbir Singh : 4 : witness examined during trial are reliable and trustworthy. Secondly, the material brought on record is sufficient to prove the essential ingredient of the alleged offence. It is a cardinal principle of criminal jurisprudence that accused shall be presumed innocent till proved guilty beyond shadow of reasonable doubt.
7. Let us now advert to the testimony of prosecution witnesses. Out of seven witnesses examined in the case complainant Shish Ram and eye witness Sudama Pandey are the most material witnesses of the prosecution case. Careful perusal of their testimonies has revealed various discrepancies and contradictions which have remained unexplained even during the course of final argument. Complainant has been examined as PW2. As per his deposition, in the month of July, 2009, he was working as Deputy Salesman at Siyal Service Station, Rama Road, WHS, Kirti Nagar. On 08.07.2007, he was on night duty from 11.00p.m. to 7.00a.m and his duty was to fill the petrol and diesel in the vehicles and to collect money from the customers. At about 11.30p.m., when he was filling diesel in vehicles, three persons came there on a motorcycle and one of the pillion rider who was sitting in the middle put his hand in right side pocket of his(complainant) trouser in which he was having cash. One of the bike rider put his hand on his eyes whereas, FIR No. 188/09 State Vs. Balbir Singh : 5 : the 3rd person (who was identified as accused by the witness) gave him a slap blow on his neck. PW2 further deposed that the person who had put his hand in his pocket, had removed the cash from his pocket, upon which he (complainant) raised alarm "Cash Chhin Liya, Cash Chhin Liya". Further as per PW2, all the assailants tried to flee away but he started chasing them and in the meantime, one another motorcycle came towards him and one of the rider of said motorcycle started shouting "Maaro Chhuri, Maaro Chhuri", and then all the accused except the accused present in the court fled away from the spot. Further that, the accused (who was identified by the witness in the court) could not flee away with his associates as he could not ride the motorcycle and he was apprehended by the complainant with the help of public persons.
8. As per PW2, cash of about 9/10 thousand was robbed and the same was not recovered from the possession of accused. Thereafter, some one called police and police reached the spot and the accused was handed over to police. Later on, complainant's statement was recorded and PW2 proved the same on record as Ex.PW2/A. Further that, the complainant indicated the place of occurrence to the police officials but did not remember as to whether IO had prepared the site plan or not. Complainant further proved on FIR No. 188/09 State Vs. Balbir Singh : 6 : record the arrest memo Ex.PW2/B and identified his signature on the same at point X.
9. PW6, Sudama Pandey is also the eye witness of the offence. As per his version, he was also working at Siyal Service Station, Petrol Pump on 08.07.2009 and on that day at about 11.30p.m. two persons came on said petrol pump on a motorcycle. PW6 deposed further that at that time, one another worker namely Shish Ram was also on duty and the pillion rider of said motorcycle snatched Rs. 9/10 thousand from the pocket of Shish Ram and both the riders tried to flee away but Shish Ram chased them and apprehended them. Further that, in the meantime, one another scooter with its riders also entered into the petrol pump and scooter rider shouted that "Isko Chaku Maaro nahi to yeh chhodega nahi",. Further that, upon this Shish Ram got frightened and his grip over the motorcyclists got loosened. PW6 further deposed that he had also chased the scooter but could only apprehend the pillion rider of said scooter. The witness pointed towards accused Balbir Singh and stated that he was the person apprehended by him at the place of occurrence. PW6 further deposed that public persons had also gathered due to alarm raised by them and later on, accused had revealed his name. Thereafter, police was called and accused was handed over to FIR No. 188/09 State Vs. Balbir Singh : 7 : police. PW6 further deposed that the associates of the accused had managed to make good their escape. He further deposed that he had not noted down the number of motorcycle or the scooter.
10. It is pertinent to note here that as per the complainant's version, three persons were riding the motorcycle out of whom the pillion rider sitting in the middle had put his hand in the right pocket of complainant's pant and removed the cash and one of them put his hand on complainant's eyes and third one gave him a slap blow on his neck and said third person was identified as accused by complainant by pointing out towards him in the court. Whereas, another eye witness Sudama Pandey i.e. PW6 came up with a totally different story. As per his version, only two persons had come on the motorcycle and pillion rider of motorcycle had snatched the cash from the pocket of Shish Ram and in the meantime, one scooter with two riders entered into the Petrol Pump and he (PW6) chased the said scooter and was able to apprehend the pillion rider i.e. accused Balbir Singh. PW6 identified the accused Balbir Singh and stated that he was the person apprehended by him (PW6). Hence, there is a clear cut contradiction with respect to the identification of the accused. Because, as per PW2, the accused was the pillion rider on the motorcycle which first came to Petrol Pump and it was FIR No. 188/09 State Vs. Balbir Singh : 8 : he who had given him a slap blow on his neck.
11. Further more, as per PW2 when the assailants of said motorcycle tried to flee away, one another motorcycle came there and one of the rider of said motorcycle shouted "Maaro Chhuri, Maaro Chhuri". Hence, as per PW2 both the vehicles which came to Petrol Pump at the time of alleged incident were motorcycle. But as per PW6, the first vehicle was motorcycle whereas, the second vehicle was a scooter. The version of PW2 disclosed that the accused was riding the first vehicle which came to the spot and on said vehicle, the accused was one of the pillion rider. Whereas, PW6 has narrated a different story by deposing that accused was riding the scooter which came afterwards and it was he(PW6) who apprehended the accused with the help of public persons. In his cross examination PW6 has deposed that all the riders of both the vehicles were sikh persons whereas, as per the complainant i.e. PW2 only the pillion rider of second vehicle was a sikh boy.
12. The perusal of file further shows that the deposition of PW2 is not in consonance with his statement Ex.PW2/A. Ld. APP has argued that since PW2 was never confronted with his previous statement during his cross examination therefore, the defence cannot be allowed to take any advantage of the FIR No. 188/09 State Vs. Balbir Singh : 9 : contradictions in the two statements made by PW2 at two different point of time. Though, I agree with the contention of Ld. APP to the extent that as in view of Section 145 of Indian Evidence Act, PW2 was required to be confronted with his statement Ex.PW2/A for giving him an opportunity to explain the contradiction in his two statements given on two different point of time, but in the case in hand, there are not only the contradictions between the two statements of the complainant but there are serious contradictions even in the statement of complainant and another eye witness Sudama Pandey as already pointed out above. Further more, despite the fact that many public persons were present at the time of alleged incident, IO has not cited any independent witness for proving the case. Whereas, the testimony of material witnesses i.e. complainant Shish Ram and Sudama Pandey is in total contradiction with each other. Further more, none of the witnesses disclosed the number or the colour of said two vehicles used by the accused and his associates and no recovery of robbed money was effected during the course of investigation.
13. Considering the aforementioned contradictions and infirmities in the prosecution case, I am of the view that the accused deserves to be acquitted.
Prosecution has miserably failed to prove the case
beyond reasonable doubt. Accordingly, accused is
FIR No. 188/09 State Vs. Balbir Singh
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acquitted in the present FIR No. 236/04. File be consigned to record room.
Announced in the open court On this day i.e. 04.07.2012 (Ms. Sunena Sharma) Ld. MM-08 (West) Delhi 04.07.2012 FIR No. 188/09 State Vs. Balbir Singh