Delhi District Court
State vs Vikram Punia & Ors. on 21 January, 2023
FIR No. 114/18
PS Chhawla
State vs Vikram Punia & Ors.
IN THE COURT OF VIPLAV DABASS:
ADDL. SESSIONS JUDGE : FAST TRACK COURT:
SOUTH-WEST DISTRICT
DWARKA COURTS: NEW DELHI
SC No. 47/2018
CNR No. DLSW01-013609-2018
JUDGMENT
(a) Name, Parentage and 1. Vikram Punia addresses of the S/o Sh. Balwan Singh accused persons. R/o Village Kharkhari Rondh, New Delhi
2. Aakash @ Golu S/o Sh. Vijay R/o Village Jhatikra, New Delhi (Proceedings against accused Akash @ Golu stands abated since expired)
3. Sagar Nagar S/o Ram Kishan R/o Village Jhatikara, New Delhi
(b) Offence 392/34 IPC and 397 IPC
(c) Plea of accused Pleaded Not guilty
(d) Final Order Acquitted
(e) Date of Institution 10.06.2018
(f) Date of committal 09.07.2018
(g) Date of Transfer to this 31.08.2022 court
(h) Date of reserving 21.01.2023 judgment
(i) Date of judgment 21.01.2023 Page No.1 of 28 FIR No. 114/18 PS Chhawla State vs Vikram Punia & Ors.
FACTUAL MATRIX
1. On 08.04.2018 at about 1.45 am accused persons namely Vikram Punia, Aakash @ Golu and Sagar Nagar in furtherance of their common intention robbed Rs. 1500/-, mobile make Nokia Model 105 and car bearing RC No. DL-1RTA-6179 belonging to the complainant and accused Vikram Punia used deadly weapon while committing the said robbery in order to commit the said offence.
On the basis of the said allegations, present FIR was registered and a charge-sheet for offences punishable u/s 392/397/34 IPC and 25/54/59 Arms Act was filed after usual investigation.
The Court of Ld. Magistrate took cognizance of the alleged offences and provisions of Section 207 Cr.P.C were complied. Thereafter, the matter was committed to the Ld. Sessions Court.
2. After hearing detailed arguments on behalf of the accused persons and the State, as a prima facie case was made out, charge for the offence punishable under Section 392/34 IPC was framed against accused Vikram Punia, Aakash @ Golu and Sagar Nagar and a separate charge for offence punishable under section 397 IPC against accused Vikram Punia was also framed to which the accused persons pleaded not guilty and claimed trial. Thereafter, the matter was fixed for prosecution evidence.
3. It is pertinent to mention that initially the trial was conducted for all the aforesaid three accused persons but on 13.12.2022 proceedings against Page No.2 of 28 FIR No. 114/18 PS Chhawla State vs Vikram Punia & Ors.
accused Aakash @ Golu were abated since he has expired.
4. In order to prove the guilt of the accused persons punishable under section 392/34 IPC and 397 IPC, the prosecution has to prove the following essential ingredients of the said Sections:
Section 392 IPC:- Commission of Robbery (1) Accused committed theft as defined in section 378 in the process:
(2) Accused caused or attempted to cause to some persons-
(i) death, hurt or wrongful restraint;
(ii) fear of death or of instant hurt or instant wrongful restraint;
(3) Accused did either act-
(a) in committing such theft, or
(b) in order to comit theft, or
(c) in carrying away or attempting to carry away the property obtained by such theft (4) Accused acted voluntarily Section 397 IPC:- Robbery, or dacoity, with attempt to cause death or grievous hurt-
(1) Accused committed robbery or dacoity; (2) While committing such robbery or dacoity the accused-
(a) used a deadly weapon;
(b) caused grievous hut to any person;
(c) attempted to cause death or grievous hurt to any person Section 34 IPC:- Sharing of Common intention
(i) That the criminal act or a series of acts which include omissions and need Page No.3 of 28 FIR No. 114/18 PS Chhawla State vs Vikram Punia & Ors.
not necessary be an overt act should have been done not by one person but by more then one person.
(ii) That the doing of every such individual act cumulatively resulting into the commission of criminal offence should have been in furtherance/ advancement/ promotion of common intention of all such persons.
PROSECUTION EVIDENCE AND STATEMENT OF ACCUSED
5. During the course of the trial, prosecution examined 06 witnesses to prove the aforesaid ingredients for substantiating the accusations levelled against the accused persons.
6. PW-3 Sh. Ajeet was the complainant. He deposed that in the year 2018, he used to ply car bearing registration number DL-1RTA-6179 make Swift Dezire of White colour in Ola Company and the owner of vehicle was Mario.
On 08.04.2018, he was coming from Bawan to his house at Najafgarh. At about 12 midnight, when he reached Delhi Gate, Najafgarh, he received booking on his device from one Deepak to go to Pandwala Village and he had to pick him from Chhawla Bus Stand. He went to the said spot a per the location. He noticed that one person was standing there and stated his name as Deepak and told him the OTP.
At that time, three persons from a gali came and sat on the rear seat of his car and Deepak sat on the front seat. He started his car and proceeded towards Jhatikra, however, the said persons asked him to take his vehicle towards Paprawat Village being a short cut. He took the vehicle as per the Page No.4 of 28 FIR No. 114/18 PS Chhawla State vs Vikram Punia & Ors.
direction of Deepak. When, he reached near plywood factory, one of the boy sitting on the rear seat stated that he was getting vomiting got down and came to him, he took out Rs. 1600/- and his mobile phone of Nokia having SIM of Idea from the pocket of his shirt. He does not remember the said mobile number. The said person also sat on the driver seat and took away his vehicle along with his associates.
He went inside the plywood factory and knocked the door and took mobile phone of guard of the said factory and informed the police about the incident. He gave complaint to the police Ex. PW-3/A. Police prepared site plan Ex. PW-3/B at his instance.
Thereafter, he along with police went to search his car and reached at Hasan Pur Village, Najafgarh Ghuman Hera Road and found his vehicle. IO called the crime team and got inspected the vehicle. The car was seized by IO.
He further deposed that the persons who had snatched his car, mobile phone and cash are not present in the court and the accused persons in the court are not the persons who snatched his car, mobile phone and cash.
Court permitted the Ld. Addl. PP for State to cross examine the witness as the witness was resiling from his previous statement.
During his cross-examination by Ld. Addl. PP for State he denied that accused Vikram had kept the pistol on his neck and threatened him to fire on him, that co-accused Sagar and Aakash also travelled in the said vehicle and both of them were sitting on rear seat of his car, that he had stated to the Page No.5 of 28 FIR No. 114/18 PS Chhawla State vs Vikram Punia & Ors.
police in his statement dated 08.04.2018 that one person followed his car from back side on Apachi bike and had stopped his bike at Plywood Factory and the said person who came on the bike had also threatened to kill them, that on 14.05.2018, he came to court and noticed accused Vikram Punia who was produced before the court and he informed the IO about his role in the incident, that on 16.05.2018, he came to Police Station and at that time, accused Sagar and Aakash were present at police station and he had identified both the accused and stated their role in the incident to the IO and that he was deposing falsely and intentionally not identifying the accused persons being won over by them.
The witness was not cross examined by Ld. Defence Counsels despite opportunity.
7. PW-1- Sh. Lalit deposed that in the last week of the month of March 2018, he was going to his house from Paprawat Village. At that time, there was darkness/night, that he was carrying the Micromax Mobile Phone of his father having two SIM, and that two boys came on motorcycle from his back side and snatched his Micromax mobile phone. He did not file any complaint and he did not see the boys who had snatched his mobile phone. He correctly identified his mobile phone Ex P-1. This witness was not cross examined by the Ld. Defence Counsel despite opportunity.
8. PW-2 Ct. Ajay accompanied the IO. He deposed that in the intervening Page No.6 of 28 FIR No. 114/18 PS Chhawla State vs Vikram Punia & Ors.
night of 07/08.04.2018, he was posted at P.S. Chhawla, that in the intervening night of 7/08.04.2018, he was on emergency duty with SI Jagmohan from 08.00 pm to 08.00 am, that on that night, one call was received regarding snatching of money by showing pistol at Ply Factory, Paprawat Chhawla, that he along with SI Jagmohan reached at the road from Paprawat to Pandwala Kala where they met complainant Ajeet who informed that they have been robbed by assailants, that IO recorded statement of Ajeet who stated that he was working as a driver and his car and mobile has been snatched by the four assailants, that IO prepared rukka which was handed over to him at 4.00 am, that he went to police station where he presented the rukka to the duty officer who got fed the contents in a computer through computer operator, that the duty officer registered the FIR No. 114/18 u/s 382/34 IPC and handed over them the copy of FIR and original rukka to be presented to IO for further investigation, that he reached at the spot where he handed over the copy of FIR and original rukka to the IO, that IO prepared the site plan at the instance of complainant, that thereafter, they along with IO and complainant went for the search of assailant and robbed articles ie car and mobile phone, that they reached near Hasanpur Village, Najafgarh, Ghuman Hera Road, in front of Devta Mandir where Swift Dezire White colour car bearing no. DL-1R-TA- 6179 was found lying abandoned, that the crime team was called, that Crime Team reached at the spot and inspected the vehicle, that the Swift Dexire car was taken into possession vide memo Ex. PW-2/A, that the car was taken to Page No.7 of 28 FIR No. 114/18 PS Chhawla State vs Vikram Punia & Ors.
the police station and deposited in the malkhana, and that he can identify the car, if shown to him.
He correctly identified the five photographs of the vehicle Swift Desire Vehicle as ex. P-2.
The witness was not cross examined by the Ld. Defence Counsel despite opportunity.
9. PW-4 HC Banwari Lal was the Finger Print Proficient at Police Station Chhawla on 08.04.2018. He deposed that he reached at Devta Mandir, Ghuman Hera, Hasanpur, Main Road where white color swift car no. DL1RTA6179 was found stationary condition, that he inspected the said car and took finger prints from the car and submitted his report ex. PW-4/A to the IO.
The witness was not cross examined despite opportunity.
10. PW-5 ASI Raj Singh was the Duty Officer posted at Police Station Chhawla on 17.04.2018. He proved the DD No. 9-A as Ex. PW-5/1(OSR), his endorsement on rukka Ex. PW-3/A, present FIR No. 114/18 as Ex. PW-5/2 and the fact of sending of original rukka and FIR to SI Jagmohan through Ct. Ajay.
The witness was not cross examined on behalf of accused Yashpal Sehrawat despite opportunity.
During his cross examination on behalf of accused Vikram Punia, he deposed that he recorded the FIR on the basis of tehrir. He denied the Page No.8 of 28 FIR No. 114/18 PS Chhawla State vs Vikram Punia & Ors.
suggestion that he had not made entry in column no. 9 in respect of Rs. 1500/-, that he had only filled particulars/ full version/full details in FIR on page no. 1 only and kept page no. 2 of FIR pending at the instance of IO and filled the same later on and that he modified the contents of FIR at the instance of IO later on. This cross examination was adopted on behalf of accused Sagar.
11. PW-6 Inspector Jagmohan was the IO of the present case. He deposed that on 07.04.2018, he was posted at Police Station Chhawla on Emergency duty from 08.00 pm to 08.00 am, that at around 02.00 pm, he received DD No. 9-A from Duty Officer regarding snatching of car, that after receiving the said DD, he along with Ct. Ajay reached at the spot near ply factory on the road leading towards Paprawat to Pandwala, that there the complainant Ajeet Singh met him in front of ply factory, that he recorded the statement of complainant, Ex. PW-3/A, which he attested at point A, that he sent Ct. Ajay along with the statement of the complainant and rukka for recording of FIR, that Ct. Ajay came back after registration of FIR, that Ct. Ajay brought copy of FIR and original rukka, that he searched for the car of the complainant which was snatched, that he found the car of the complainant lying parked in front of Devta Mandir, at Najafgarh, Ghuman Hera Road, that he does not remember the make of the car but same was Taxi of Delhi number, that he called the crime team which inspected the car of the complainant, that the car was brought to police station Chhawla where it was deposited in the malkhana Page No.9 of 28 FIR No. 114/18 PS Chhawla State vs Vikram Punia & Ors.
and that GPS system of the car was missing from the car.
He further deposed that on 11.04.2018, accused Vikram Punia, Aakash @ Golu and Sagar Nagar were arrested from Daulatpur, Road, Ghumanhera, on the basis of secret information, that pistol was recovered from accused Vikram Punia with one live cartridge, that mobile phone of the complainant was recovered from Sagar Nagar, that he prepared the seizure memo of pistol and cartridge vide seizure memo Ex. PW-6/1, as well as of mobile phone vide seizure memo Ex. PW-6/2, and that he had also prepared seizure memo of car (Ex. PW-2/A).
He further deposed that he had also prepared arrest memo of accused Virkam, Aakash and Sagar vide Ex. PW-6/3 to Ex. PW-6/5, that he had also prepared personal search memo of accused Vikram, Aakash and Sagar as Ex. PW-6/6 to Ex. PW-6/8, that he had also recorded disclosure statement of accused Vikram, Aakash and Sagar after their arrest vide memo Ex. PW-6/9 to Ex. PW-6/11, that he also prepared the sketch (khaka) of pistol and the live cartridge as Ex. PW-6/12 and Ex. PW-6/13, that all accused persons were got medically examined and thereafter were produced before the court, that accused Sagar Nagar and Vikram Punia were sent to JC by the Ld. MM and accused Aakash @ golu was given PC remand, however he does not remember as to for how many days PC remand was given, that during PC remand accused Aakash @ Golu was taken at the place of occurrence but money was not recovered from his possession, that accused Aakash @ Golu Page No.10 of 28 FIR No. 114/18 PS Chhawla State vs Vikram Punia & Ors.
pointed out towards the place of occurrence but he does not remember whether he had prepared the pointing out memo or not, that thereafter, he had moved an application for holding TIP of accused persons but all the accused persons refused to participate in the TIP proceedings, the he collected the proceedings of TIP conducted by Ld. MM, that the accused Aakash @ golu was sent to JC thereafter, that he recorded the statement of witnesses under section 161 Cr.P.C and sent the exhibits to FSL Rohini and that he prepared the charge sheet and filed the same in the court.
He correctly identified all the three accused persons and ...... mobile phone as Ex. P-1, car as Ex. P-2, five photographs of the car already Ex. PW-1/1 to PW-1/5, pistol and cartridge as Ex. P-3.
During his cross-examination conducted by the Ld. Defence counsel for accused, he deposed that he reached at the spot by car, that he does not remember whether it was a government vehicle or private one, that when he reached at the spot he met the complainant who was alone there, that he stayed at the place of recovery of car for around one hour, that the car was recovered from the fields opposite Devta Mandir on Najafgarh Ghuman Hera road at around 5-6 am. He deposed that the crime team reached at the spot within one or two hours of his arriving at the spot and that he does not remember whether site plan of place of recovery of car was made or whether the sketch of the accused was got prepared at the instance of the complainant or not. He further deposed that the complainant identified the accused in the Page No.11 of 28 FIR No. 114/18 PS Chhawla State vs Vikram Punia & Ors.
court premises at the time of JC extension and that he does not remember whether he had written date of identification of the accused by the complainant in his statement under section 161 Cr.P.C.
He denied the suggestion that accused was never identified by the complainant Ajit that is why the aforesaid date of identification was not mentioned by PW-6 in his statement. He deposed that on 11.04.2018, he received secret information about accused but he does not remember exact time when he left the police station for investigation bases on secret information. He denied the suggestion that he arrested the accused Vikram Punia from Jhatikra on the basis of call which was got made by him by accused Sagar Nagar to Vikram Punia asking him to met at Jhatikra. He deposed that he does not remember the name of the person whom he informed about the arrest of accused Vikram Punia, that he does not remember whether he had obtained the signatures of the said person on the arrest memo or that he had not mentioned the date and time on arrest memo of accused.
He further deposed that he does not join any public person at the time of recovery of pistol. He admitted that place of recovery of pistol and car are public place, that the said place of recovery of pistol and car was on a running road where vehicle keep on passing frequently. He denied the suggestion that he had recovered the pistol from JCL Shivansh and planted the same on the present accused Vikram Punia to work out the case. He deposed that he does not measure the pocket of Jeans pant worn by accused to ascertain whether Page No.12 of 28 FIR No. 114/18 PS Chhawla State vs Vikram Punia & Ors.
the allegedly recovered pistol can fit into the same, that he does not obtain the finger prints of the accused Vikram Punia. He denied the suggestion that he does not get the sketch prepared at the instance of the complainant deliberately or that he had already shown the photograph of accused Vikram Punia to complainant before the identification made by complainant in the court premises. He deposed that he had taken Akash @ golu on police remand.
Court permitted the witness to go through the record as the witness was not sure about the name of accused taken on police remand. He deposed that after going through the record witness stated that he had deposed wrongly about the accused taken on police remand as accused Sagar Nagar was taken on police remand. He denied that accused has been falsely implicated to work out the case.
During his cross-examination by Ld. Defence counsel, he deposed that accused Sagar Nagar was alone when he arrested the accused Sagar Nagar, that he arrested the accused Sagar Nagar, Akash @ Golu and Vikram Punia separately, that he does not remember the name of the accused who was arrested first by PW/IO. He admitted that he had shown Daulatpur Ghuman Hera road at the place of arrest of the three accused. He denied the suggestion that he had arrested all the three accused together that is why the place of arrest was shown as Daulatpur Ghuman Hera Jhatikra road ie the same place. He volunteerly deposed that all the three accused persons were arrested from Page No.13 of 28 FIR No. 114/18 PS Chhawla State vs Vikram Punia & Ors.
the different locations falling on the same road. He further deposed that he recovered a micromax phone from accused Sagar Nagar, that the said phone belong to complainant, and that he does not remember whom the said phone belonged to.
He denied the suggestion that he arrested the accused Sagar on 09.04.2018 at around 09.30 pm from his house in Jhatikra village, that he detained the accused Sagar Nagar illegally in Chhawla Police station till evening of 09.04.2019 and then took him to police station Jaffar Pur Kalan on the night of 09.04.2018, that nothing was recovered from accused Sagar, that the alleged recoveries have been planted upon accused Sagar, that the accused Sagar was falsely implicated to work out the case by planting the case properties upon him and by preparing all the documents while sitting at police station.
12. Thereafter, prosecution evidence was closed vide order dated 19.11.2022 at the request of the Ld. (Sub) Additional Public Prosecutor and the matter was fixed for recording statement of accused persons under Section 313 Cr.P.C wherein all the incriminating circumstances appearing in evidence were put to them to which they replied that the same are incorrect or a matter of record, that the witnesses have deposed against them being interested witnesses and that they have been falsely involved in the present case. The accused persons opted not to lead defence evidence and therefore, defence evidence was closed. Thereafter, matter was fixed for final arguments.
Page No.14 of 28 FIR No. 114/18PS Chhawla State vs Vikram Punia & Ors.
SUBMISSIONS OF THE PARTIES AND REASONS FOR THE DECISION
13. Ld. Substitute Additional Public Prosecutor argued that the prosecution witnesses have clearly established the prosecution version that accused persons namely Vikram Punia, Aakash @ Golu and Sagar Nagar in furtherance of their common intention robbed Rs. 1500/-, mobile make Nokia Model 105 and car bearing RC No. DL-1RTA-6179 belonging to complainant/ PW-3 and accused Vikram Punia used deadly weapon in order to commit the alleged offence. Ld. Additional PP for the State submitted that the duly proved TIP proceedings wherein the accused persons had refused to participate in the TIP, further, incriminate the accused persons as they have not been able to show any reasonable ground for justifying their said refusal during the trial. He further argued that the fact that the complainant and other eye witness have turned hostile qua the identity of the accused persons as offenders does not in any manner effect the veracity of the consistent testimony of the police witnesses as they did not have any previous enmity with the accused persons. He further stated that moreover the complainant/eye witnesses in such cases turn hostile due to fear of future enmity with the offenders, so the firm testimony of the police cannot be discarded in such circumstances and in these facts, both accused be convicted for the offences charged as all the ingredients necessary for Page No.15 of 28 FIR No. 114/18 PS Chhawla State vs Vikram Punia & Ors.
completion of alleged offences are proved beyond reasonable doubt.
14. Ld. counsels for the accused persons argued that the complainant/PW-3 who is the Star witness of the prosecution has not supported its version qua presence of accused persons at the spot, identity of the accused persons as assailants and use of the country made pistol (katta) by the accused persons at the time of commission of alleged offence. He argued that the testimony of the police witnesses is of no consequence in view of hostility of the main witnesses. He further stated that mobile phone of complainant/PW-3, cash pertains to this case was not was recovered during the entire investigation and that the hostility of the complainant and other eye witness qua identity of accused persons as assailant substantiates the defence version of false implication of the accused persons. He further submitted that the accused persons in these circumstances should be acquitted.
15. This court heard the arguments advanced by the Ld. (substitute) Additional PP for the State as well as Ld. Counsel for the accused persons and the record of the case.
16. Perusal of the testimony of PW-3 reveals that he has turned hostile regarding the factum involvement of the accused persons in the incident reported by him to the police. He was cross-examined by the Ld. Addl. P.P for the State but he firmly denied all the leading questions put by the prosecution.
Page No.16 of 28 FIR No. 114/18PS Chhawla State vs Vikram Punia & Ors.
17. It is evident from the aforesaid testimony that the prosecution failed to extract any material in its favour despite detailed cross-examination as the witness firmly denied all the material suggestions. It is further seen that PW-3 completely shattered the prosecution version by denying in the cross examination conducted by Ld. Substitute Additional Public Prosecutor that he had made a police statement that accused Vikram had kept the pistol on his neck and threatened PW-3 to fire on him, that co-accused Sagar and Aakash also traveled in the said vehicle and both of them were sitting on the rear seat of his car, that on 08.04.2018 one person followed his car on Apachi bike and had stopped his bike at Ply wood factory and that the said person who came on the bike had also threatened to kill him. The witness has even denied that on 14.05.2018, he came to the court and noticed accused Vikram Punia who was produced before the court and he informed the IO about his role in the incident.
18. He further shattered the prosecution version by stating that on 16.05.2018, he came to the police station and at that time, accused Sagar and Aakash were present at police station and he had identified both the accused and stated their role in the incident to the IO. He even failed to identify the accused persons as assailants.
19. The afore discussed firm denials of PW-3 show that PW-3 did not support the prosecution version as put to him by way of suggestions. It follows that the witness thus reaffirmed that the accused were not the Page No.17 of 28 FIR No. 114/18 PS Chhawla State vs Vikram Punia & Ors.
assailants. It implies that the prosecution has failed to prove its case through this witness.
20. These testimonies of PW-3 thus demolish the prosecution version as the witness has turned hostile with respect to presence of accused persons at the spot as well as commission of robbery by them and used of deadly weapon/ country made pistol by the accused Vikram Punia. The factum of identification made during investigation by the complainant/ PW-3 as per the prosecution version is also completely disowned by this star witness. The aforesaid hostility of PW-3/ victim is sufficient to hold that no case is made out against all the accused persons for the offence punishable under section 392/34 IPC as well as against the accused Vikram Punia for the offence punishable under section 397 IPC.
21. It is evident from the aforesaid testimony of PW-3 that he did not identify the accused persons as the assailants who committed robbery of his car, cash of Rs. 1500/- and mobile phone of Nokia Make. It is also seen from the judicial file that the said mobile phone of Nokia Make and cash of Rs. 1500/- was not recovered during entire investigation. The car belonging to the complainant was recovered by the police officials in the presence of the complainant on the date of the incident itself ie on 08.04.2018 and not pursuant to any disclosure statement of the accused persons or otherwise at their instance. So, the recovery of cash is of no consequence to connect the accused persons with alleged offence. Record shows the version of the Page No.18 of 28 FIR No. 114/18 PS Chhawla State vs Vikram Punia & Ors.
prosecution is that the accused Vikram Punia along with one another associates Shivam(juvenile) had snatched a Micromax mobile phone belonging to PW-1 Lalit, a few days before the present incident and the said mobile was used in booking the Ola Car belonging to the complainant PW-3 which was robbed by the present accused persons on 08.04.2018. It is reflected from the testimony of PW-1 Lalit that he stated in his examination in chief that he does not file any complaint qua the snatching of his micromax mobile phone and that he did not see the boys who had snatched his mobile phone. However, PW-1 has correctly identified his mobile phone as Ex. P-1. It follows from these testimonies that the version of PW-1 is also of no effect to fasten criminal liability upon the accused persons for the alleged offences.
It is pertinent to mention that as per the duly proved seizure memo Ex. PW-6/2, the said micromax mobile phone with two sims was recovered from the pocket of accused Sagar Nagar. It is further evident from the record that no investigation like collection of CDR or other electronic record was conducted to verify the use of said mircomax mobile phone in the commission of present offence.
Record further shows that after the recovery of the said mobile phone disclosure statement of all the three accused persons were recorded by PW- 6/IO SI Jagmohan and the same has been duly proved. Reading of the said disclosure statements of accused Vikram Ex. PW-6/9 reveals that the said mobile phone was snatched by Vikram and Shivansh and after two days of Page No.19 of 28 FIR No. 114/18 PS Chhawla State vs Vikram Punia & Ors.
snatching the accused Vikram Punia booked an Ola Cab on 08.04.2018 which is the car of the complainant and was robbed altogether. As per the duly proved disclosure statements of accused Akash @ Golu Ex. PW-6/10, the said mobile phone was used by Sagar Nagar for booking of the Ola Cab. However, as per the disclosure statement of accused Sagar Nagar Ex. PW-6/11, from whom the said mobile phone was allegedly recovered, the Ola cab was booked by him. It is also nowhere stated as to how the mobile phone which was snatched by accused Vikram Punia and was also used by him for booking the Ola cab landed into the hands of accused Sagar Nagar from whom the alleged recovery has been made. These contradictions regarding the person who booked the Ola cab by using the said phone create grave doubt upon the factum of recovery of the mobile phone of PW-1 from the possession of accused Sagar Nagar.
22. Perusal of the testimony of PW-6 SI Jagmohan and record shows that the alleged recovery of country made pistol at the instance of accused Vikram Punia and aforesaid micromax mobile from the possession of accused Sagar Nagar was made on 11.04.2018 where as the incident had occurred on 08.04.2018. It is clear that the said recoveries from the possession of said accused persons were not effected immediately or so soon after the happening of the alleged incident that an adverse inference regarding the same being stolen property can arise.
Page No.20 of 28 FIR No. 114/18PS Chhawla State vs Vikram Punia & Ors.
It is further seen from the testimony of PW-6/ IO SI Jagmohan and record that no DD entry or other document suggesting his movement from police station to the spot of arrest/ recovery ie Daulat Pur Mor Main Jhatikra Road, Najafgarh, has been proved by prosecution. Testimony of PW-6/IO Jagmohan further shows that he stated in his examination in chief and cross examination that the mobile phone of the complainant was recovered from accused Sagar Nagar where as the mobile so recovered belonged to PW-1, who is not the complainant in the present case. In the cross examination, PW/IO stated that he does not remember whether site plan of place of recovery of car was made or whether the sketch of the accused was prepared at the instance of the complainant or not. He deposed in his cross-examination that he had taken accused Akash @ Golu on police remand whereas after going through the record on being permitted by the court to do so, he deposed that accused Sagar Nagar was taken on police remand.
It is further seen from the testimony of PW-6/IO that he arrested all the three accused persons separately and that he did not remember the name of the accused, who was arrested first by him. He admitted that he had shown Daulat Pur Ghuman Road as the place of arrest of all the three accused. He volunteered that all the three accused persons were arrested from different locations falling on the same road. In view of the aforestated inconsistent testimonies of PW-6/IO regarding the place and time of arrest of the three accused persons, this court deems it fit to refer to the duly proved arrest Page No.21 of 28 FIR No. 114/18 PS Chhawla State vs Vikram Punia & Ors.
memos of the said three accused persons Ex. PW-6/3, Ex. PW-6/4 and Ex. PW-6/5 wherein the date and time of arrest of all the three accused persons is shown as 11.04.2018 at 10.30 pm and the place of arrest of all the three accused persons is also shown as Daulat Pur Mor, Main Jhatikra Road, Najafgarh, New Delhi. As it is settled proposition that persons may lie but documents do not, it is established from the said arrest memos that the arrest of all the three accused persons was not made in the manner as deposed by IO and that he is making a wrong statement regarding the investigation conducted by him. It further shows that chances of false implication of all the three accused persons by planting the alleged recoveries upon them after apprehending them illegally, cannot be ruled out.
It is further evident from the record that country made pistol is also stated to have been recovered from the possession of the accused Vikram Punia but no sanction under section 39 Arms Act has been filed during the entire trial and keeping in view the same, neither cognizance of Arms Act was taken nor charge was framed. Even if it is assumed that the version of recovery of the said pistol is correct, that due sanction under section 39 Arms Act was obtained and that charge was also framed for the offence punishable under relevant section of Arms Act still considering the hostility of the complainant/ PW-3 qua the identity of the accused persons as assailants and as the reasons discussed herein above, said recovery cannot be said to be duly proved.
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It is already evident that prosecution has failed to prove the presence of PW-6/IO at the spot as no document to show his presence at place of recovery and apprehension is proved. The testimony of IO discussed above speaks volumes about the discrepancies and grave suspicion upon the factum of arrest and recoveries made in the alleged manner.
It is further seen from the testimony of PW-6/IO and record that he admitted that he does not join any public person at the time of recovery of pistol, that the place of recovery of pistol is public place and that he does not obtain finger prints of the accused Vikram Punia. Record further shows that PW-6/IO and his team did not offer their own search prior to conducting the search of the accused persons including accused Vikram Punia from whose possession the alleged pistol was recovered.
These unexplained omissions and discrepancies made during the investigation make it highly probable that the entire proceedings of the police are fabricated and that the alleged country made pistol was planted upon the accused Vikram Punia. So, the prosecution has failed to prove the factum of recovery of alleged country made pistol.
23. Perusal of the record shows that PW-3 is the only eye witnesses of the incident. It is further clear that PW-4 to PW- (police officials) are not eye witnesses of the incident. PW-2 Ct. Ajay, PW-4 HC Banwari Lal, PW-5 ASI Raj Singh and PW-6 Inspector Jagmohan have merely conducted the investigation based on the version stated by the complainant. The police Page No.23 of 28 FIR No. 114/18 PS Chhawla State vs Vikram Punia & Ors.
witnesses have duly proved the various steps taken as well as the various memos prepared during investigation ie arrest memo, personal search memo, recovery memo, seizure memo etc. It is evident from the discussion made in the previous paragraphs that PW-3 has turned hostile regarding the identity of the accused persons as assailants. PW-3 has even not supported the prosecution version of recording of his statements by the police qua the manner of commission of the alleged offence which indicates that chances of false implication by manipulating and fabricating documents cannot be ruled out. Similarly, PW-1 has not identified the accused persons as the assailants who snatched his Micromax Mobile two days before the present incident from which the Ola Cab booking was done. So, the testimonies of the police witnesses, in view of the hostility of PW-3 qua identity of the accused persons as offenders and PW-2 qua accused being snatcher of his Micromax mobile, is of no consequence to incriminate the accused persons for the alleged offences.
24. The police officials did not even make any sincere efforts to collect the dump data/CCTV footages of the spot as well as nearby areas so as to establish the presence of the accused persons on the relevant date at or near the spot. This again is material omission on the part of the investigating agency which renders the investigation doubtful and substantiates the defence version of false implication of the accused persons.
25. With respect to the arguments advanced by Ld. Substitute Addl. Public Prosecutor for State that the refusal of the accused persons to join the TIP is Page No.24 of 28 FIR No. 114/18 PS Chhawla State vs Vikram Punia & Ors.
sufficient incriminating circumstance against them, it is pertinent to mention that the TIP is not substantive piece of evidence. The same can merely used to corroborate the version stated during the trial before the court.
26. In the present case, PW-3 has not identified the accused persons as the offender during trial. This is a case of refusal on the part of the accused persons to join the TIP which has the effect of giving rise to an adverse inference against the accused persons qua their culpability. However, in view of the hostility of the eye witness qua the identity of the accused persons as offenders during trial, adverse inference of culpability of the accused persons arising on the basis of refusal to join TIP, stands washed off. So, this argument of Ld. Sub. Addl. PP for State does not hold any water.
27. It is already evident from the aforementioned discussion that identity of the accused persons as offenders has not been established. So, question of sharing of common intention by the accused persons to rob the victim by using deadly weapon in the alleged manner does not arise and the same needs no discussion. Moreover, the prosecution did not bring any material suggesting the sharing of common intention by the accused persons for commission of the alleged offences. Neither any telephonic record or nor any other electronic evidence or other direct evidence has been brought on record suggesting even their presence at the spot so as to assume that there was ever an occasion for the accused persons to share common intention for committing the alleged offences at the spot. It is also seen that no Page No.25 of 28 FIR No. 114/18 PS Chhawla State vs Vikram Punia & Ors.
incriminating material pertaining to his case was recovered or discovered at the instance of accused persons. This fact further shows that there is no material available on record to connect the accused persons with the commission of alleged offences.
28. Regarding the burden of proving the prosecution version it is pertinent to mention the case law reported as " Sadhu Singh Vs. State of Punjab :
1997 (3) Crime 55, wherein the Punjab & Haryana High Court had observed that-
" In a criminal trial it is for the prosecution to establish its case beyond reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused".
29. Following the aforesaid observations and considering the inconsistencies and incoherent testimonies, this Court is of the view that prosecution has not been able to travel the entire distance from 'may have' to 'must have' and thus it can not be said that prosecution has been able to prove its case beyond reasonable doubts.
30. It is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the Page No.26 of 28 FIR No. 114/18 PS Chhawla State vs Vikram Punia & Ors.
defence of the accused. Further, it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also, it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal. Applying the said propositions to facts and testimonies of this case, benefit of doubt also accrues in favour of accused persons.
31. It thus emerges from the aforesaid discussion and perusal of testimonies of PWs as well as record that there is neither any reliable eye witness of the incident nor any other circumstance to prove beyond reasonable doubt, the presence of accused persons at the spot, the identity of the accused persons as assailants, the recovery of alleged country made pistol from the possession of the accused Vikram Punia as well as other case property and the use of the country made pistol (katta) by the accused persons at the time of commission of alleged offence, which are essential elements for completion of offence punishable u/s 392/34 and 397 IPC Indian Penal Code.
32. Considering the afore-discussed testimonies, this Court is of the view that arguments advanced by the Ld. Substitute Additional Public Prosecutor for the State that the prosecution has proved all the ingredients necessary for completion of the alleged offences do not have any force whereas the Page No.27 of 28 FIR No. 114/18 PS Chhawla State vs Vikram Punia & Ors.
arguments made on behalf of defence that the accused persons have been falsely implicated, are found to be justified.
33. In view of the aforesaid discussion, this Court is of the view that the prosecution has not been able to prove its case against the accused beyond reasonable doubts. Accordingly, accused Vikram Punia and Sagar Nagar are hereby acquitted of charge punishable u/s 392/34 IPC and the accused Vikram Punia is further acquitted for the charge punishable u/s 397 IPC.
Bail bonds stands cancelled and Sureties be discharged, if any. Documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any.
34. Fresh Bail bonds and surety bonds in compliance of Section 437 (A) Cr.P.C are already on record. Same are considered and accepted for a period of six months from today.
35. File be consigned to the Record Room after due compliance.
Announced in the Open Court (VIPLAV DABASS)
on 21.01.2023 ADDITIONAL SESSIONS JUDGE:
FAST TRACK COURT
DWARKA COURTS, SOUTH-WEST
NEW DELHI
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