Delhi District Court
State vs Lucky Panchal on 1 September, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SHAHDARA, KARKARDOOMA COURTS,
NEW DELHI
Presided over by- Sh. Dev Chaudhary, DJS
Cr. Case No. -: 1681/2022
Unique Case ID No. -: DLSH020027102022
FIR No. -: 94/2022
Police Station -: Harsh Vihar
Section(s) -: 392/394/34/411 IPC
In the matter of -
STATE
VS.
LUCKY PANCHAL
S/o Sh. Satender
R/o C-67, Gali no. 6, Saboli Extn.
North East, Harsh Vihar Delhi. .... Accused
1.Name of Complainant : Kanhiya Lal Yadav
2. Name of Accused : Lucky Panchal Offence complained of or
3. : 392/394/34/411 IPC proved
4. Plea of Accused : Not guilty Date of commission of
5. : 17.01.2022 offence
6. Date of Filing of case : 02.03.2022
7. Date of Reserving Order : 24.08.2023
8. Date of Pronouncement : 01.09.2023 Convicted under Section
9. Final Order :
392/34 IPC Argued by -: Sh. Nadeem, Ld. APP for the State.
Sh. Tushant, Ld. LAC for the accused.
Cr No. 1681/2022 State Vs. Lucky Panchal Page no. 1 of 11 Digitally signed by DEV CHAUDHARY DEV CHAUDHARY Date:
2023.09.01 12:50:37 +0530 INDEX -
HEADING PARA No. 1. Factual Matrix 1-2 2. Evidence 3-7 3. Arguments 8-10 4. Analysis and Findings 11-19 5. Conclusion 20-23
BRIEF STATEMENT OF REASONS FOR THE DECISION-
FACTUAL MATRIX -
1. Briefly stated, the case of the prosecution is that on 17.01.2022, the complainant Kanhaiya Lal Yadav had parked his vehicle near the graveyard. Around 07:00 pm, four boys came near his vehicle. One boy came from the driver's side, the other boy came from the passenger's side and threatened the complainant to open the doors. As soon as the complainant opened the doors of the vehicle, the said persons dragged him out of the vehicle, and after beating him, took his phone kept on the seat of his vehicle. The persons fled from the spot and the complainant chased one of them. It is alleged that out of the four persons, the complainant caught the present accused Lucky Panchal, and the mobile phone of the complainant was also recovered from the possession of the present accused. The remaining accused could not be arrested. As such, it is alleged that the accused has committed the offence under Section 392/394/411/34 of the Indian Penal Code, 1860 (hereinafter, "IPC"), for which FIR No. 94/2022 was registered at Police Station Harsh Vihar, New Delhi.
2. After culmination of investigation, the chargesheet was filed against the accused and he was summoned to face trial.
Cr No. 1681/2022 State Vs. Lucky Panchal Page no. 2 of 11 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.09.01 12:50:18 +0530 On appearance, copy of the chargesheet was supplied to him and on finding a prima facie case against the accused, charge under Section 392/394/34/411 IPC was framed against the accused. The accused pleaded not guilty to all the charges and claimed trial.
EVIDENCE -
3. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt-:
ORAL EVIDENCE PW-1 : Kanhaiya Lal Yadav (complainant) PW-2 : HC Sachin Kumar (accompanied IO) PW-3 : HC Avneesh (MHCM) PW-4 : ASI Upkar (IO) DOCUMENTARY EVIDENCE Ex. PW1/A : Police complaint Ex. PW1/B : Arrest memo Ex. PW1/C : Personal search memo Ex. PW1/D : Seizure memo Ex. P1 : Mobile phone Ex. PW2/A : Disclosure statement of accused Ex. PW3/A : Register No. 19 Ex. PW 4/A : Rukka Ex. PW 4/B : Site plan ADMITTED DOCUMENTS Ex. A1 : FIR Ex. A2 : Certificate under Section 65B IEA Ex. A3 : DD No. 67A Cr No. 1681/2022 State Vs. Lucky Panchal Page no. 3 of 11 Digitally signed by DEV CHAUDHARY DEV CHAUDHARY Date:
2023.09.01 12:51:02 +0530
4. Kanhaiya Lal Yadav (PW1) is the star witness of the prosecution, being the complainant. He stated on oath on 17.01.2022, he had parked his fully loaded truck at Mandoli, at the graveyard. He deposed that about 07:00 pm, four boys came to his truck and two of them climbed on the windows on each side of the vehicle. They threatened him and out of fear, he opened the window. The said persons dragged him out of the vehicle started beating him. Thereafter, he was restrained, and one of the boys' took out his mobile phone of make MI from the truck. The boys started to flee and he yelled after them.
Thereafter, he chased them and out of the four boys, caught one of them who was indentified as the accused Lucky Panchal. He stated that he called at 100 number and some police officials came at the spot, to whom the accused Lucky was handed over. He deposed about recovery of his mobile from the accused Lucky. He identified the accused as well as the case property from the dock. The witness was not cross examined by the defence.
5. ASI Upkar (PW4) is the IO in this case, who stated on oath that on the date of the incident, he was marked the investigation in the present matter, and he reached the spot with Ct. Sachin. He deposed about meeting the complainant and the accused, recovering the mobile phone from the accused, preparing the rukka, registration of FIR, preparation of site plan, arrest of accused, etc. He deposed that he completed the investigation and filed the chargesheet. This witness was not cross examined by the defence.
Cr No. 1681/2022 State Vs. Lucky Panchal Page no. 4 of 11
Digitally
signed by
DEV
DEV CHAUDHARY
CHAUDHARY Date:
2023.09.01
12:51:19
+0530
6. The remaining prosecution witness supported the case of the prosecution and proved the documents mentioned in the Table above.
7. Thereafter, before the start of defence evidence, in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, separate statement of the accused was recorded without oath under Section 313 CrPC (read with Section 281 CrPC). The accused stated that he is innocent and has been falsely implicated in the present case. He stated that he was not involved in the incident and he only had the mobile phone, which he had given to the police officials. Pursuant thereto, he stated that he does not wish to lead any defence evidence.
ARGUMENTS -
8. I have heard the learned APP for the State and learned counsel for the accused at length. I have also have given my thoughtful consideration to the material appearing on record.
9. It has been argued by the learned APP for the State that all the ingredients of the offence are fulfilled in the present case. The testimony of the complainant is categorical to the effect that he was robbed by the accused. He has argued that the material on record including the recovery proves the commission of offences by the accused. It is argued that there is no material to disbelieve the testimony of the prosecution witnesses. As such, it is prayed that the accused be punished for the said offences.
10. Per contra, learned counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. He has argued that the accused has been falsely Cr No. 1681/2022 State Vs. Lucky Panchal Page no. 5 of 11 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.09.01 12:51:28 +0530 implicated in the present matter. He has argued that no other person involved in the incident has been arrested and the recovery has been planted on the accused. It is argued that there is no material to show the ownership of the mobile phone and no other public witness has been brought to the stand. As such, it is prayed that the accused be acquitted for the said offences.
ANALYSIS AND FINDINGS -
11. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met. In order to prove the offence under Section 392 IPC, it has to be proved by the prosecution that the accused committed theft accompanied by voluntary causing or attempting to cause death, hurt or wrongful restraint to the victim in order to commit theft, or while committing theft or while attempting to carry away stolen property. The offence can also be proved by proving extortion accompanied by putting the victim in fear of instant death, hurt or wrongful restraint. Further, the offence under Section 394 IPC, which is an aggravated offence of robbery, is also invoked against the accused in the present case. For this offence, prosecution has to prove that the accused caused hurt at the time of committing the robbery. Further, for the offence under Section 411 IPC, it has to be proved that the accused dishonestly received or retained stolen property, with knowledge or reason to believe that it was a stolen property.
12. Needless to state, under criminal law, the burden is on the prosecution to prove the offences charged beyond any reasonable doubt. This higher threshold is to be rebutted by the defence by punching holes in the case of the prosecution.
Cr No. 1681/2022 State Vs. Lucky Panchal Page no. 6 of 11 Digitally signed by DEV CHAUDHARY DEV CHAUDHARY Date:
2023.09.01 12:51:39 +0530
13. The main offence charged against the accused is that of robbery. The complainant is the sole and star witness of the prosecution qua the said offence. The testimony of the complainant PW1 in this regard is that in the evening of the fateful day, while he was sitting inside his parked truck, four persons came to him and after dragging him out of his truck, attacked him. He has deposed about the act of the accused persons in detail. It is deposed that after he was beaten and restrained, one person took his mobile after opening the window of the truck. He has deposed about the utterances of the assailants. The deposition of the witness clearly brings forth the fact that he was restrained while the act was being committed (Refer: Section 339 IPC). It further brings out that he was also beaten by the accused. Although the MLC of the complainant is on record, it was not tendered into evidence by the prosecution. Despite the same, the act of the accused, as deposed by the complainant, falls within the confines of first part of Section 390 IPC. The witness PW1 has deposed about the factum of the theft of mobile, the factum of being wrongfully restrained and beaten in order to commit the theft by the accused and his associates. Regarding the identity of the offenders, the complainant PW1 has deposed that he had managed to catch hold of one of the robbers, after chasing him. The complainant PW1 identified the accused Lucky Panchal as one of the offenders, from the dock. The deposition of other prosecution witnesses corrborates the claim of the complainant. PW2 and the IO PW4 have deposed that when they reached the spot, the complainant had produced the accsued as one of the offenders. The recovery of the case Cr No. 1681/2022 State Vs. Lucky Panchal Page no. 7 of 11 Digitally signed by DEV CHAUDHARY DEV CHAUDHARY Date:
2023.09.01 12:52:00 +0530 property belonging to the complainant was subsequently made from the present accused.
14. On an overall appreciation of the evidence of the witnesses, it is clear that the defence has failed to punch any holes in their deposition. The complainant has narrated about the incident in detail, and has identified the accused as well as the case property. The witness has not been cross examined by the defence and as such, his testimony has remained unchallenged. DD No. 67A, Ex. A3 is of the date of the incident and it mentions about a call received by the police regarding forcible snatching of phone of the caller by 3-4 persons, after trying to hit him. Further, the deposition of the IO PW4 and the police official PW2, who accompained the IO, has also remained unchallenged. They have deposed about the recovery of case property, arrest of the accused and investigation done by the IO. They were also not cross examined by the accused and nothing has been brought on record by the defence to put any doubt on the deposition of the witness.
15. Therefore, the testimony of the complainant PW1 inspires confidence as the complainant has deposed about the incident in detail. The deposition of the complainant clearly demonstrates the accused persons actively participated in the commission of the offence and as such, are liable for the offence by virtue of Section 34 IPC. The act of the accused persons in cojointly climbing upon the doors of his vehicle, threatening him, dragging him outside the vehicle, beating and restraining him, and then robbing his mobile phone points towards the prior meeting of minds. The contention of the defence is that no public person was brought to the stand in support of the case of the Cr No. 1681/2022 State Vs. Lucky Panchal Page no. 8 of 11 Digitally signed by DEV CHAUDHARY DEV CHAUDHARY Date:
2023.09.01 12:52:17 +0530 prosecution. In this regard, it is observed that the testimony of the complainant inspires confidence and there is no reason to disbelive the same. It is not the case of the accused that the complainant had prior enmity with the accused and has falsely implicated and deposed against him. There is nothing in the deposition of the complainant to point towards the fact that the spot was a crowded area and other persons were also available at the time of the incident. It is settled law that evidence is to be weighed and not counted. Section 134 of the Indian Evidence Act, 1872 embodies this principle. Therefore, the case of the prosecution cannot be doubted on this aspect as well.
16. Further, the other documentary evidence like the site plan Ex. PW4/B, seizure memo Ex. PW1/D, arrest memo Ex. PW1/B bearing signatures of the complainant, and the other documents on record corrborate the case of the prosecution.
17. Even though it is correct that the invoice of the mobile phone which is on record, has not been tendered into evidence, the fact remains that the complainant has identified the case property from the dock as his. An offshoot of the above discussion is that the defence has been unable to punch holes in the version of the complainant. The version of the complainant is consistent and umimpeached. The factum of recovery of the stolen property from the accused is also proved by the prosecution.
18. The charge has been framed for the offence under Section 392 as well as Section 394 IPC. Section 394 IPC is an aggravated form of the offence of robbery punished under Section 392 IPC. The offence under Section 394 IPC is attracted when the offender voluntarily causes hurt at the time of Cr No. 1681/2022 State Vs. Lucky Panchal Page no. 9 of 11 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.09.01 12:52:30 +0530 committing or in attempting to commit robbery. As observed above, in the present case, the complainant deposed that he was attacked before theft was committed on his mobile phone, which was kept inside the vehicle. As per his deposition, he was attacked outside the vehicle. Thus, the act falls within the first part of Section 390 IPC as the act was done "in order to commit theft". Further, it is noted that the MLC of the complainant has not been proved in evidence and the complainant has not deposed that on account of the beatings, he had any bodily pain, disease or infirmity (as per Section 319 IPC). However, he has categorically deposed about being restrained. As such, the offence made out against the accused, on the basis of the material on record, is that punishable under Section 392 IPC. On the basis of the above discussion, it can be safely held that the prosecution has been successful in proving the offence under Section 392/34 IPC against the accused. However, it has failed to prove the offence under Section 394/34 IPC, on the basis of the evidence on record. The defence of the accused is false implication, which remains unproved.
19. Apart from the main offence, the charge under Section 411 IPC has been framed upon the accused. However, it is already established that the accused committed the robbery himself. Section 411 IPC envisages change of custody of the stolen property from the thief to some other person and in this case, as it is proved that the accused committed the robbery, he cannot be said to be receiver of stolen property as well. As such, the accused stands acquitted for the offence under Section 411 IPC.
Cr No. 1681/2022 State Vs. Lucky Panchal Page no. 10 of 11 Digitally signed by DEV CHAUDHARY DEV CHAUDHARY Date:
2023.09.01 12:52:57 +0530 CONCLUSION -
20. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offence of Section 392/394/34 IPC and Section 411 IPC beyond reasonable doubt. The complainant has entered into the witness box and has proved the commission of the offence under Section 392/34 IPC by the accused. Nothing has been brought on record to discredit his version. However, the accused is liable to be acquitted for the offence under Section 411 IPC, as he have been proved to be the robber of the stolen property. Further, he is also liable to be acquitted for the offence unfrt Section 394/34 IPC.
21. Resultantly, the accused LUCKY PANCHAL son of Satender Panchal is hereby found to be guilty and is accordingly CONVICTED for the offence under Section 392/34 IPC.
22. However, the accused is acquitted for the offence under Section 394/34 IPC and Section 411 IPC
23. Let the convict be heard separately on the point of sentence. Copy of the judgment be given free of cost to the convict. Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.09.01 12:53:14 +0530 Announced in Open (DEV CHAUDHARY) Court in presence of accused. Metropolitan Magistrate - 07 Shahdara District, KKD This judgment contains New Delhi, 01.09.2023 11 signed pages.
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