Delhi District Court
State vs . (1). Naresh Kumar Chouhan on 18 February, 2016
FIR No. 212/10; U/s 392/394/397/411/34 IPC; PS Alipur D.O.D. 18.02.2016 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 245/14 Unique Case ID No. 02404R0089102014 State Vs. (1). Naresh Kumar Chouhan S/o Sh. Rajbir Singh R/o J194, O.B.C. Bank Wali Gali, Khera Kalan, Delhi. (2) Jasbir @ Jassa S/o Sh. Suresh Chander R/o H. No. 298, VPO Kanjhawala, Delhi110081. (Proceedings against him already abated vide order dated 22.05.2014) (3) Deepak S/o Sh. Mahabir R/o H. No. 330, VPO Kanjhawala, Delhi110081. (4) Gaurav Kumar @ Sethi S/o Sh. Suresh Kumar R/o Chataniya Ka Makaan, near Fatak Khera Kalan, Delhi. FIR No. : 212/10 Police Station : Alipur Under Sections : 392/394/397/411/34 IPC State Vs Naresh Kumar Chauhan etc. Page 1 of 18 FIR No. 212/10; U/s 392/394/397/411/34 IPC; PS Alipur D.O.D. 18.02.2016 Date of committal to Sessions Court : 17.09.2014 Date on which judgment was reserved : 18.02.2016 Date on which Judgment pronounced : 18.02.2016 JUDGMENT
BRIEF FACTS OF THE CASE
1. The case of the prosecution as mentioned in the chargesheet is as under:
(i). That on 27.06.2010 at about 1.10 am, intimation was received in PS Alipur regarding quarrel at Bharat Petrol Pump, Alipur.
Same was recorded vide DD No. 5A and was entrusted to ASI Phool Singh for necessary action. On receipt of said DD entry, ASI Phool Singh alongwith Ct. Sunil reached the place of information, where public persons were found gathered. One of them was having custody of one person in injured condition. Complainant Balwant (PW1) met ASI Phool Singh and produced custody of accused Naresh Kumar Chauhan before him and claimed that cash amount of Rs. 2000/ robbed from him, were recovered from said accused;
(ii). ASI Phool Singh recorded statement of complainant Balwant, wherein he claimed that during intervening night of 26/27.06.2010 at about 12 mid night, after loading goods in his tempo no. DL1M2065 from Narela, he parked the said vehicle State Vs Naresh Kumar Chauhan etc. Page 2 of 18 FIR No. 212/10; U/s 392/394/397/411/34 IPC; PS Alipur D.O.D. 18.02.2016 in front of Indian Oil Petrol Pump and had been returning back to his house while walking and was passing in front of MCD Dispensary, Alipur, he was waylaid by four persons who started beating him. They were in the age group of 2025 years and one of them showed him churi and threatened him to keep quite failing which he would be stabbed. Thereafter, they all committed robbery of his mobile phone make Nokia 1508 having SIM No. 9871639740 and cash amount of Rs.2000/ from pocket of his pant. He raised noise on which Rizwan, who was helper in the aforesaid vehicle, came for his rescue and both of them managed to apprehend one of the offenders, whose name was subsequently revealed as Naresh Kumar Chauhan. His three remaining associates managed to flee away from the spot. His robbed amount of Rs. 2000/ was recovered from the possession of accused Naresh Kumar Chauhan. On the basis of said statement, FIR in question was got recorded for the offences punishable U/s 392/394/411/34 IPC and investigation was marked to SI Bharat Bhushan;
(iii). It is further the case of prosecution that during investigation, IO SI Bharat Bhushan (since expired) prepared site plan of the place of occurrence and arrested accused Naresh Kumar Chauhan and also seized cash amount of Rs. 2000/ recovered from said accused;
State Vs Naresh Kumar Chauhan etc. Page 3 of 18 FIR No. 212/10; U/s 392/394/397/411/34 IPC; PS Alipur D.O.D. 18.02.2016
(iv). It is further the case of prosecution that on 03.07.2010, intimation was received from PS S.P. Badli vide DD No. 79B regarding apprehension of accused Deepak, Jasbir @ Jassa (since expired) and Gaurav Kumar U/s 41.1 Cr.P.C. and said accused having confessed their involvement in the present case. Accordingly, IO formally arrested all the said three accused in this case and also got the robbed mobile phone of this case recovered from the possession of accused Deepak, transferred to PS Alipur. The robbed mobile phone was correctly identified by complainant Balwant during judicial TIP. After completion of investigation, chargesheet was filed before the Court of Ld. M.M.
2. After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to this Court.
CHARGES FRAMED AGAINST THE ACCUSED PERSONS
3. After hearing arguments on the point of charge, this Court was pleased to frame charge for the offences punishable U/s 392/394/34 IPC against accused persons namely Naresh Kumar Chauhan, Deepak and Gaurav Kumar @ Sethi vide order dated 12.02.2015. Separate charge in respect of offence punishable U/s 397 IPC was framed against accused Gaurav Kumar @ Sethi and separate charges for the offence punishable State Vs Naresh Kumar Chauhan etc. Page 4 of 18 FIR No. 212/10; U/s 392/394/397/411/34 IPC; PS Alipur D.O.D. 18.02.2016 U/s 411 IPC were also framed against accused Deepak and Naresh Kumar Chauhan vide order dated 12.02.2015, to which they pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined six witnesses namely PW1 Sh. Balwan, PW2 HC Sanjay Tyagi, PW3 Ct. Satya Pal, PW4 Dr. Rajesh Kumar, PW5 Sh. Rizwan and PW6 SI Ravinder during trial.
5. It may also be mentioned here that Ld. Additional PP dropped PW HC Amarjeet Singh from the list of witnesses on 27.05.2015 on the ground that he was the witness of repetitive facts in respect of which other prosecution witnesses namely PW2 HC Sanjay Tyagi and PW3 Ct. Satyapal had been examined in this case.
6. It is also pertinent to note that the accused persons made joint statement during trial on 06.02.2016 that they were not disputing the contents of judicial TIP conducted by Ld. MM during the course of investigation and they had no objection in case said witness may not be summoned during trial. In view of said statement made by accused persons and the fact that TIP proceeding had already been exhibited by PW6 SI Ravinder as Ex.PW6/A, Ld. Additional PP dropped PW namely Sh. Manish Khurana, the then Ld. MM from the list of witnesses.
7. Considering the fact that none of the star witnesses examined by the prosecution in the present case, had supported the prosecution story on material aspect of identity of any of the accused herein with regard to offences punishable U/s 392/394/34 IPC & U/s 397 IPC and relevant State Vs Naresh Kumar Chauhan etc. Page 5 of 18 FIR No. 212/10; U/s 392/394/397/411/34 IPC; PS Alipur D.O.D. 18.02.2016 witnesses cited by prosecution for proving the charge for offence punishable U/s 411 IPC had been examined during trial, prosecution evidence has been closed as no useful purpose would have been served in examining the remaining prosecution witnesses as none of them was undisputedly present at the time of incident in question. Thus, it would have been an exercise in futility in examining those prosecution witnesses besides wastage of precious time of the Court.
8. Thereafter, statements U/s 313 Cr.P.C. of all the four accused persons were recorded, during which all the incriminating evidence which came on record, were put to them which they denied. All the accused persons claimed that they are innocent and have been falsely implicated in this case. However, all the accused persons opted not to lead any evidence towards their defence.
9. I have heard Sh. Pankaj Bhatia, Ld. Additional PP on behalf of State and Ld. defence counsel Sh. Rajesh Sharma, Adv on behalf of all the accused persons. I have also gone through the material available on record.
10. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record. The said testimonies are detailed as under: PUBLIC WITNESSES:
11. PW1 Sh. Balwant: As per the case of prosecution, this State Vs Naresh Kumar Chauhan etc. Page 6 of 18 FIR No. 212/10; U/s 392/394/397/411/34 IPC; PS Alipur D.O.D. 18.02.2016 witness was the victim against whom robbery was committed in this case. He deposed that on the intervening night of 26/27.06.2010, he had parked his Tempo bearing registration no. DL1M2065 in front of Indian Oil Petrol Pump, which was loaded with goods. Thereafter, while walking on foot when he had reached in front of MCD Dispensary, Alipur, suddenly, he was attacked by 34 persons who had covered their faces with cloth pieces and only their eyes were visible. One of the said assailants took out a knife and pointed out said knife towards him and snatched his mobile phone make Nokia 1508 of black colour. However, he could not disclose SIM number of the mobile phone. Two of the assailants caught hold of him and also gave beatings to him. One of the assailants who had caught hold of him, also robbed a cash sum of Rs. 2000/ from the inner front pocket of his pant and said currency notes were in the denomination of Rs. 100/. After committing robbery, said unknown offenders started moving towards Alipur. He raised noises and in the meantime, helper of his Tempo namely Rizwan (PW5) also reached there and they chased the said offenders, but in vain.
PW1 further deposed that thereafter, they had come to their Tempo and he narrated the occurrence to some public persons who were present there. One of the said public persons, made a call at 100 number. Police officials reached there and made enquiries from him and asked him to sign certain documents. When he had signed the said documents, they were blank. Police had not recorded his statement but had obtained his State Vs Naresh Kumar Chauhan etc. Page 7 of 18 FIR No. 212/10; U/s 392/394/397/411/34 IPC; PS Alipur D.O.D. 18.02.2016 signature on one blank paper. When police official obtained his signature on blank paper, he had enquired from said police official as to why his statement had not been recorded, but said police official whom he cannot identify, was perhaps a Constable, stated to him that they had made enquiries from him and that they would record his statement on the basis of said enquiries. None of the offenders was apprehended in his presence.
The attention of this witness was also drawn towards his statement on the basis of which the FIR in the present case was registered. Though witness identified his signature at pointA on the said statement, but he submitted that when he had signed said document, same was blank. The said statement was exhibited as Ex.PW1/A. He further deposed that he would not be able to identify his cash amount of Rs.2000/ even if shown to him, as there was no identification mark put by him on the currency notes which were robbed from his pocket and even their serial numbers were also not noted by him.
When 20 currency notes of Rs. 100/ each denomination and one paper slip bearing case particulars of this case, were shown to him, he after carefully seeing the said currency notes, deposed that he was not in a position to identify the currency notes as there was no identification mark put by him on the currency notes which were robbed from his pocket and even their serial numbers were also not noted by him.
However, he identified the mobile phone make Nokia 1508 as Ex.P1during trial and deposed that it was the same mobile phone, which State Vs Naresh Kumar Chauhan etc. Page 8 of 18 FIR No. 212/10; U/s 392/394/397/411/34 IPC; PS Alipur D.O.D. 18.02.2016 was robbed from his possession and also deposed that he had identified the said mobile even in the judicial TIP.
After carefully seeing the accused persons, he stated that he had not seen the faces of the assailants at the time of commission of offence as the assailants had already covered their faces with cloth pieces. He could not say as to whether the accused persons present in the Court, were the assailants who had committed robbery against him or not.
This witness was also subjected to detailed cross examination by Ld. Additional PP as he was not supporting the case of prosecution on material facts concerning the offences punishable U/s 392/394/397 IPC charged in this case. During said cross examination, Ld. Additional PP put all the relevant suggestions to him on the lines of prosecution story but same were denied by him.
In his cross examination, he admitted that there was no specific identification mark appearing on mobile phone Ex.P1, on the basis of which he had identified the said mobile phone in Judicial TIP or even during trial. He had not handed over any bill regarding purchase of said mobile phone and he was also not aware about the IMEI number thereof. He admitted that mobile phones similar to mobile phone Ex.P1, are easily available in the open market and in the absence of IMEI number of robbed mobile, it was difficult for him to identify the mobile phone. However, he denied the suggestion that mobile phone number (Ex.P1) did not belong to him or that he had identified the same at the instance of IO State Vs Naresh Kumar Chauhan etc. Page 9 of 18 FIR No. 212/10; U/s 392/394/397/411/34 IPC; PS Alipur D.O.D. 18.02.2016 of the case.
12. PW5 Sh. Rizwan: This witness has not supported the case of prosecution at all and he completely turned hostile during trial. He even denied to have made any police statement during investigation and nothing material could come on record even during his cross examination on behalf of State as he denied all the relevant suggestions put to him on the lines of prosecution story. He has not been cross examined on behalf of accused persons despite opportunity.
POLICE WITNESSES
13. PW2 HC Sanjay Tyagi and PW3 Ct. Satya Pal: Both these witnesses alongwith HC Amarjeet were on patrolling duty at GTK Road, Bye pass, Sanjay Gandhi Transport Nagar on 03.07.2010, when they received secret information that three persons had been looking for prospective buyer for selling stolen mobile phone. Accordingly, raiding party was prepared by said police officials and at about 7:00 p.m., they apprehended accused Deepak, Gaurav Kumar @ Sethi and Jasbir @ Jagga (since expired) on the pointing out of secret informer. One mobile phone make Nokia 5030 C2, was recovered from the pocket of the wearing pant of accused Deepak. On interrogation, he revealed that said mobile phone had been robbed by them from the possession of one person 45 days ago. Thereafter, sealed pullanda of said mobile phone was prepared and it was seized vide memo Ex.PW2/A, IMEI Number of said mobile phone was State Vs Naresh Kumar Chauhan etc. Page 10 of 18 FIR No. 212/10; U/s 392/394/397/411/34 IPC; PS Alipur D.O.D. 18.02.2016 also mentioned in the seizure. Said accused were arrested by them vide memos Ex.PW2/B to Ex.PW2/D and their disclosure statements Ex.PW2/H to Ex.PW2/K were also recorded. Intimation in that regard was given at PSS.P. Badli vide DD No.52B Ex.PW2/L and Kalandara U/S. 41.1 Cr.P.C (Ex.PW2/M) was also prepared.
In their respective cross examinations, both these witnesses remained consistent and deposed that distance between the place of information and place of apprehension of accused persons was about 50 meters. No independent public person was requested to join the proceedings at the place of apprehension of accused persons or even at the time of preparing pullanda of recovered mobile phone. They denied the suggestion that no mobile phone was recovered from the possession of the accused Deepak.
14. PW6 SI Ravinder: This witness remained IO of this case from 12.10.2012 till filing of the chargesheet before the Court. He deposed that on 20.10.2012, he got collected the sealed pullanda of mobile phone through Ct. Yad Ram from Malkhana of PS - S.P. Badli and got the same deposited in the malkhana of PS Alipur. On 03.11.2012, he had moved an application for conducting Judicial TIP of the case property and during TIP, the complainant Balwant (PW1) had correctly identified the mobile phone before Ld. Link MM on 03.11.2012. He exhibited the TIP proceedings as Ex.PW6/A as defence counsel did not object to the exhibition of the TIP proceedings in the testimony of this witness. He has State Vs Naresh Kumar Chauhan etc. Page 11 of 18 FIR No. 212/10; U/s 392/394/397/411/34 IPC; PS Alipur D.O.D. 18.02.2016 not been cross examined on behalf of the accused persons despite grant of opportunity.
MEDICAL EVIDENCE:
15. PW4 Dr. Rajesh Kumar: This witness had examined injured/victim Balwant on 27.06.2010, vide MLC no. 1324/10. He exhibited said MLC as Ex.PW4/A and deposed that upon medical examination of said injured/patient, tenderness over back and upper limb were noticed. He has not been cross examined on behalf of accused persons despite opportunity.
ARGUMENTS ADVANCED AND CASE LAW CITED
16. While opening the arguments, Ld Additional PP referred to the testimonies of prosecution witnesses examined during trial. He argued that it were these three accused, who had committed robbery of mobile phone and cash amount from victim Balwant on given date, time and place. He also contended that there has been recovery of robbed mobile phone make Nokia 1508 of victim at the instance of accused Deepak, which clearly shows that these accused were involved in the offence of robbery committed against the complainant. Alternatively, Ld. Additional PP submitted that offence U/s 411 IPC is duly proved against accused Deepak on account of recovery of robbed mobile phone from his possession. Therefore, said accused should be convicted accordingly.
17. On the other hand, Ld defence counsel vehemently argued State Vs Naresh Kumar Chauhan etc. Page 12 of 18 FIR No. 212/10; U/s 392/394/397/411/34 IPC; PS Alipur D.O.D. 18.02.2016 that none of the public witnesses i.e. PW1 & PW5 identified any of the accused persons to be the robbers having committed robbery of valuable articles of complainant. Therefore, prosecution has miserably failed to prove the charge against the accused persons. He further argued that recovery of robbed mobile phone at the instance of accused Deepak, is also doubtful as no independent public witness has been joined by concerned police officials at the time of alleged recovery thereof despite their availability and thus, the possibility of planting of said mobile phone cannot be ruled out. For the said purpose, ld. defence counsel also referred to the cross examination of alleged recovery witnesses i.e. PW2 HC Sanjay Tyagi and PW3 Ct. Satya Pal. He, therefore, urged that offence U/s 411 IPC is also not proved against accused Deepak.
18. Firstly, I shall deal with the offences punishable U/s 392/394/34 IPC charged against all the three accused persons as also the offence punishable U/s 397 IPC charged against accused Gaurav Kumar @ Sethi. As already discussed above, the complainant namely Balwant was the sole eye witness of the incident in question being victim himself, as per prosecution story propounded in the charge sheet. Apart from the complainant, the prosecution also cited PW5 Rizwan to be its material witness for proving the said charges against the accused persons.
19. However, PW1 Balwant i.e. the complainant himself has failed to support the prosecution story during trial. He turned hostile during trial by not identifying the accused persons to be amongst the State Vs Naresh Kumar Chauhan etc. Page 13 of 18 FIR No. 212/10; U/s 392/394/397/411/34 IPC; PS Alipur D.O.D. 18.02.2016 robbers who had committed robbery of his mobile phone and cash amounting to Rs.2,000/. No doubt, PW1 supported the prosecution story to the extent that incident of robbery had taken place against him by 34 assailants. But, he clarified that he was not in a position to identify the assailants as they had covered their faces with cloth pieces and only their eyes were visible at the time of committing robbery against him. Not only this, PW1 also failed to identify the cash amounting to Rs.2,000/ shown to him during trial as he claimed that since there was no identification marks put by him on robbed currency notes and even their serial numbers were also not noted down, he was unable to identify the said currency notes produced during trial. Further, he also denied to have made statement (Ex.PW1/A) made before the police. Rather, he deposed that police official had obtained his signatures on certain documents and also asked him to sign on a blank paper. Despite the fact that PW1 was subjected to detailed cross examination by ld. Addl. PP on behalf of the State, nothing could come on record so as to connect any of the accused persons for the offences punishable U/S. 392/394/34 IPC charged against them or to connect accused Gaurav Kumar @ Sethi with the offence punishable U/s. 397 IPC also charged against him.
20. So far as PW5 Rizwan is concerned, he also did not support the case of the prosecution during the trial. As per the case of the prosecution, this witness alongwith PW1 had chased the offenders & managed to apprehend accused Naresh Kumar Chauhan and recovered State Vs Naresh Kumar Chauhan etc. Page 14 of 18 FIR No. 212/10; U/s 392/394/397/411/34 IPC; PS Alipur D.O.D. 18.02.2016 robbed amount of Rs. 2000/ from his possession. However, he denied to have chased the robbers alongwith complainant Balwant (PW1) or having succeeded in apprehending accused Naresh Kumar Chouhan or recovery of robbed amount of Rs.2,000/ from the possession of said accused. He also denied that accused Naresh Kumar was arrested by police in his presence or that recovered currency notes amounting Rs.2,000/ were seized in his presence. He also denied to have made statement Mark PW5/A before the police. Although, he admitted that relevant memos were appearing his signatures, but claimed that said memos were blank at the time when he had signed the same. He also did not identify currency notes amounting to Rs.2,000/ during trial.
21. In view of the discussion made in the preceding paras, the case of prosecution has fallen down like a pack of cards. The other prosecution witnesses and the documents relied by prosecution, could have been of corroborative value if something would have come on the surface in the deposition of victim. PW1 and PW5 alone could have proved the case of prosecution by deposing on the lines of prosecution story, which is not the case herein.
22. In view of the above discussion, there is no iota of doubt that the prosecution has miserably failed to prove the charge for the offences punishable U/s 392/394/34 IPC against the accused persons beyond pales of reasonable doubt. For the same reason, the offence punishable U/s 397 IPC framed against accused Gaurav Kumar @ Sethi also could not be State Vs Naresh Kumar Chauhan etc. Page 15 of 18 FIR No. 212/10; U/s 392/394/397/411/34 IPC; PS Alipur D.O.D. 18.02.2016 established for want of sufficient evidence on record. There is no iota of evidence available on record to show that it were accused persons, who had given beatings to the victim Balwant or had committed robbery in this case.
23. Nevertheless, the evidence as available on record establish the guilt of accused Deepak for the offence punishable U/s 411 IPC on account of recovery of robbed mobile phone (Ex.P1) from his possession. There is no merit in the argument advanced on behalf of said accused that due to non joining of independent public witness at the time of recovery of robbed articles, the testimony of the police witnesses i.e. PW2 and PW3 should be viewed with suspicion or that recovery of mobile phone from the possession of said accused, becomes doubtful on that count. Firstly, it has been sufficiently explained by said recovery witnesses that 45 passersby were requested to join the raiding party after sharing secret information with them but none agreed and they all left the spot showing their inability and without disclosing their names and addresses. Secondly, the IMEI number of robbed mobile phone recovered from the possession of accused Deepak, was found matching with the IMEI number of robbed mobile phone as mentioned in the seizure memo available on record.
24. Moreover, law is not that testimonies of police officers are absolutely untrustworthy or that it can never be acted upon. Rather, the law is that even the testimony of a police officer can be acted upon and State Vs Naresh Kumar Chauhan etc. Page 16 of 18 FIR No. 212/10; U/s 392/394/397/411/34 IPC; PS Alipur D.O.D. 18.02.2016 conviction can be based on such testimony if the testimony is unimpeached and is found to be trustworthy.
25. In the matter titled as "State, Govt. of NCT of Delhi Vs. Sunil & Anr." reported at (2001) 1 SCC 652, Hon'ble Apex Court held as under: "xxxxx This Court examined a similar issue in a case where no person had agreed to affix his signature on the document. The Court observed that it is an archaic notion that actions of the police officer should be viewed with initial distrust. At any rate, the Court cannot begin with the presumption that police records are untrustworthy. As a proposition of law the presumption should be the other way around. The wise principle of presumption, which is also recognized by the legislature, is that judicial and official acts are regularly performed. Hence, when a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the Court to believe that version to be correct if it is not otherwise shown to be unreliable. The burden is on the accused, through crossexamination of witnesses or through other materials, to show that the evidence of the police officer is unreliable. If the Court has any good reason to suspect the truthfulness of such records of the police the Court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume that police action is unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions xxxxx".
26. In the light of aforesaid discussion and the evidence available on record, Court is in agreement with the submission made by Ld. State Vs Naresh Kumar Chauhan etc. Page 17 of 18 FIR No. 212/10; U/s 392/394/397/411/34 IPC; PS Alipur D.O.D. 18.02.2016 Additional PP that accused Deepak is liable for being found in possession of robbed mobile in respect of which robbery had been committed by the offenders on the given date, time and place and the prosecution has been successful in establishing the guilt of accused Deepak for the offence punishable U/s 411 IPC beyond shadow of doubt.
27. In the light of aforesaid discussion, the accused persons namely Naresh Kumar Chauhan, Deepak and Gaurav Kumar @ Sethi are hereby acquitted for the offences punishable U/s 392/394/34 IPC, accused Gaurav Kumar @ Sethi is also acquitted for the offence punishable U/s 397 IPC and accused Naresh Kumar Chauhan is also acquitted for the offence punishable U/s 411 IPC. However, accused Deepak is convicted for the offence punishable U/s 411 IPC.
Announced in open Court today (Vidya Prakash)
On 18.02.2016 Additional Sessions Judge04 (North)
Rohini Courts, Delhi
State Vs Naresh Kumar Chauhan etc. Page 18 of 18