Delhi District Court
State vs . Anil Kumar on 29 March, 2022
IN THE COURT OF MS. CHARU ASIWAL METROPOLITAN
MAGISTRATE-04/CENTRAL: DELHI
STATE VS. ANIL KUMAR
FIR No. 55/2008
Case No. 289499/2016
P.S. : RAJENDER NAGAR
U/s 392/452/342 IPC
Date of institution of case : 06.06.2008
Date on which case reserved for judgment : 16.03.2022
Date of judgment : 29.03.2022
JUDGMENT :
a) Date of offence : 02.04.2008 b) Offence complained of : U/s 392/452/342 IPC c) Name of complainant : Smt. Saroj Aggarwal d) Name of accused, : Anil Kumar his parentage : S/o Sh. Suresh Yadav, local & permanent residence R/o:- Village Jahar Mohra, P.S Rai Nagar, Distt Madhubani, Bihar e) Plea of accused : Pleaded not guilty f) Final order : Acquittal BRIEF FACTS OF CASE:
1. The case of the prosecution is that on 02.04.2008 at about 01:15 pm at house no. 6-B/2, old Rajender Nagar, NEA, accused committed theft of two gold bangles, one diamond ring, one pair of diamond ear ring and two mobile phones by FIR No. 55/2008 State Vs. Anil Kumar Page no. 1 putting the complainant in the fear of instant death/ injury or wrongful restraint and the accused further wrongfully confined the complainant Smt. Saroj Aggarwal and her servant Dev Kumar, and thereby committed offences punishable U/s 392/452/342 IPC.
2. On the basis of material filed along with the charge-sheet, charge u/s 392/452/342 was framed against the accused Anil Kumar to which he pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution examined 12 witnesses.
4. PW1 Sh. Krishan Pal deposed that he registered the FIR Ex. PW1/A on receiving rukka from Ct. Puran Chand at 1.30 pm.
5. PW2 Smt. Saroj Aggarwal deposed that on the day of the commission of offence, her husband and both her sons were at their factory. That at about 01.15 pm, door bell of her house rang and her servant Dev Kumar opened the door. On opening the door, one person covering his face entered the house and pushed Dev Kumar and straight away entered her bedroom. She also stated that accused pointed a gun at her and said "Maal Nikal". On being held at gun point, she got scared and handed over one diamond ring, one pair of diamond earrings and two gold bangles. The witness correctly identified the accused present on that day in the court. She also stated that she knows the accused as he had worked as a servant in her house for 1-2 years. She also stated that, on the day of offence accused asked her to hand over the keys of the almirah to which she stated that the keys are in possession of her mother-in-law. The witnesses had also deposed that she also tried to remove the cloth/mask from the face of the accused and on such removal, she was able to identify the accused at the spot of crime. She had also stated that accused had FIR No. 55/2008 State Vs. Anil Kumar Page no. 2 pushed her which led to an injury in her ear. Thereafter, the accused bolted both herself and her servant Dev Kumar in the bathroom and the accused fled from her house. She also deposed that the accused also took away two of her mobile phones. She had also stated that at the time of commission of offence one tenant was living right above her floor and it is only this tenant who had informed her relative Ashish Aggarwal who consequently came alongwith her mother to free her from the locked bathroom. She also stated that Ashish Aggarwal informed the police as well as her husband about the commission of robbery in her house. Witness also stated that during investigation police officials came to her house on their own and that she did not aid the police officials in preparation of the site plan. During her cross- examination witness was confronted with her statement u/s 161 Cr.P.C where she had stated that the accused came with a toy revolver, however during her cross- examination witness had not tendered any explanation with respect to this inconsistency. She had also stated in her cross examination that no neighbour came to her house at the day of commission of offence. She also said that in her in-laws came on the spot in the presence of police.
6. PW3 Arun Kumar Aggarwal deposed that on the day of offence, he received a call from his son Amit Aggarwal who called from their residence that robbery has been committed at their house. He states that on receiving such call, he immediately rushed to his house and informed the police. Witness also stated that on reaching his house, he found that police had lifted fingerprints from the spot and had also recorded statement of his wife. Witness also stated that during such offence, bangles, necklace, gold rings and two mobile phones have been robbed. He also stated that after the lapse of 3-4 months, the accused was arrested. He also stated that at the time of commission of offence, his parents and brothers who reside at the first floor of their house were not present as they had gone to hospital.
FIR No. 55/2008 State Vs. Anil Kumar Page no. 3
7. PW4 Santosh Kumar deposed that at the time of commission of offence, the accused used to live with him at a house in Bapa Nagar. This witness also stated that he had informed the police about the permanent address of the accused. Witness also stated that police took his signatures of 4-5 sheets of blank papers. This witness did not support the version of the prosecution and therefore was cross examined by the State. In his cross examination by the State, witness resiled from his statement in examination-in-chief and stated that accused did not use to live with him at the relevant point of time. Witness also stated that accused did not take out attachee from tand and did not take out one toy pistol, one goggle and one mobile from it. Witness also stated that he never informed the police about the objects being used in the commission of present crime. Witness though admitted his signatures on Ex.PW4/A (seizure memo) and Ex.PW4/B (sketch of toy pistol) however he denied their content stating that the police made him sign blank papers.
8. PW5 Ct. Rashid Khan deposed that he had joined the recovery proceedings with the IO at 16/263, Bapa Nagar, 3rd floor. He stated that at such address one attachee was found which contains one toy pistol, one mobile phone and one goggle. Such articles were seized vide seizure memo Ex.PW4/A. This witness was also cross examined by the State on the point of preparation of sketch of toy pistol and on the IMEI number of the recovered mobile phone. During his cross examination, witness had admitted that no departure entry was made while leaving the police station, for Bapa Nagar, Delhi.
9. PW6 Harish Kumar deposed that he was part of the team alongwith IO which took the accused to his native village i.e village Zahar Mohra, PS Raj Nagar, District Madhubani Bihar. Under cross examination witness deposed that the facts of the present case were informed to the local police and accordingly, recovery was made with the help of local police and staff. Witness admitted that there were FIR No. 55/2008 State Vs. Anil Kumar Page no. 4 houses near the house of accused, however he is not aware if IO requested public persons to join the recovery proceedings. Witness was not able to give description of the house of the accused nor was he able to tell if any family members of the accused were present at the time of proceedings, however he stated that father of the accused met them on such day.
10. PW7 HC Balram deposed that he was also part of the recovery proceedings at the permanent address of the accused in Bihar. This witness deposed that during the recovery proceedings, some villagers had appeared and joined. He also stated that mother of the accused met them on the day of recovery.
11. PW8 Ct. Dharambir Singh deposed that he was part of the investigating team and recovery of objects used in the crime were made on the disclosure statement of the accused.
12. PW9 Mukesh, who stated to be the owner of house no. 16/263, Bapa Nagar, Delhi failed to support the version of the prosecution and stated that he cannot identify the accused. He stated that he is not aware who Anil Kumar was, or what are the details of the offence in question.
13. PW10 Sh. Dev Kumar is an eyewitness of the present case, however this witness as well has not supported the version of prosecution in its entirety. This witness stated that one tall young boy entered the house and pushed him aside. He also stated that only the eyes of the accused were visible and that accused was carrying one wooden piece in his hand. Thereafter the assailant went straight inside the bedroom of the complainant and the complainant gave away her earrings and nose pin only, and thereafter they were both locked inside the bathroom. Witness turned hostile with respect to the identity of the accused as he failed to identity him.
FIR No. 55/2008 State Vs. Anil Kumar Page no. 5 During the examination of the witness, the case property was de-sealed, wherein he also failed to identify the case property i.e one toy pistol, one goggle, and one handkerchief. This witness was also cross examined by the State.
14. PW11 ASI Mahesh Kumar on 02.04.2008, he was posted at Mobile Crime Team, Central District as a photographer. On that day, a call was received from PS Rajinder Nagar. As per the direction of the IO and IC Crime Team, he clicked seven photographs from different angles. He brought the negatives of photographs. Negatives of the photographs are Ex.P1 (Colly). During cross examination the witness, admitted that he only took photographs of the spot and no finger prints were collected by him
15. PW12 retired SI Rakesh Yadav IO deposed in consonance with the version of prosecution, however only in parts. He deposed that the complainant stated that the voice of the person was similar to her previous servant namely Anil Kumar. She also stated that his physical description was also matching with her servant Anil Kumar. IO also stated that On 04.04.2008, he alongwith Ct. Dharamvira and Ct. Rashid Ali took one acquaintance of Anil named Santosh to his village Jehar Mohra, District Madhubani Bihar, and thereafter, Accused Anil was apprehended from the said village, however he only served him a notice under section 160 Cr.P.C and asked him to produce himself at PS Rajinder Nagar. On 08.04.2008, accused Anil came at the PS. During the interrogation, accused Anil disclosed that he had hidden the pistol in house no. 16/623, 3 rd floor Bapa Nagar, Delhi. Thereafter, recovery of such pistol was made from the above address, however the pistol was a toy. He prepared a rough sketch of the pistol which is Ex.PW4/B. Thereafter, he seized the toy pistol vide memo Ex.PW4/A. Thereafter, accused Anil vide memo Ex.PW5/A. Further, On 16.04.2008, he alongwith his staff FIR No. 55/2008 State Vs. Anil Kumar Page no. 6 took accused Anil to his village at Madhubani Bihar. From his house, accused Anil got recovered one pair of gold Bangles, one gold ring and one pair of earring. he also recovered one mobile phone make Motorola colour black from his house. Thereafter, he seized the pullanda vide memo Ex.PW7/A. Witness, identified Accused Anil Kumar correctly. During his examination leading questions were put to the witness, by the Ld. APP for the State on point of preparation of the site plan, preparation of pointing out memo. During his cross examination by defence, witness was not able to prove his departure entry from the police station when he left for recovery of articles at the local address of the accused in Bapa Nagar, Delhi. He also stated that he met the owner of the property at the first floor, and that the property was surrounded by residential houses, however he did not make any efforts to join any public persons as witness except Mukesh who is PW-9 Witness also stated that he reached the house of the complainant at about 09:00-09:30 am on the day of commission of offence, alongwith Ct. Puran ,that they remained in the house of complainant for about 2 hours. Crime team reached at the spot at about 10:00 am. Crime team got the information from the control room. Crime team had interrogated the spot and had taken the photographs and chance-print. He stated that he had not taken the crime team report and have not attached with the case file. He also stated that the place of incident is surrounded by residential houses, however he had not interrogated any residents or visited their houses for the interrogation of the present case. He had only entered the drawing room where the incident had occurred which was situated just after the main gate. During cross examination, he also deposed that on 18.04.2008, he alongwith his staff, local police staff and the accused reached at village Jehar Mohra, Madhubani Bihar at about 05:00 pm, and remained there for about 45 minutes. He recalled that around 100-200 villagers also gathered at the house of accused, although he did not record the statement of villagers. He only stated to have recorded the statement of Santosh (PW4) as a witness who had accompanied him from Delhi. He also did not record the statement of local police FIR No. 55/2008 State Vs. Anil Kumar Page no. 7 who accompanied them.
16. Thereafter Prosecution closed its Evidence.
17. Thereafter, statement of the accused Anil Kumar S/o Suresh Yadav was recorded U/s 313 r/w 281 Cr. PC, wherein each every incriminating evidence was put to the accused. In such examination accused denied each evidence against him in totality, wherein he stated that he has been falsely implicated at the behest of the complainant, as he demanded his dues of salary.
18. Accused opted not to lead any DE.
FINAL ARGUMENTS
19. Arguments were heard at length from both the sides.
20. Ld. APP for the State argued that prosecution has been successful in discharging its burden, as the complainant has identified the accused and the case property has also been recovered from him.
21. Per Contra, Ld. Counsel for accused argued that the accused has been falsely implicated, as there is not even an iota of evidence against him. He argued that the most glaring discrepancy in the present case is the identification of accused, which as is evident from examination and statement of the complainant is unproved. He also argued that the weapon in question is also a toy weapon therefore there was no threat to the complainant. He argued that the recovery made in the present case is also shrouded with doubts and FIR No. 55/2008 State Vs. Anil Kumar Page no. 8 inconsistencies and therefore the same cannot be relied upon.
FINDINGS AND OBSERVATIONS:
22. Before delving into the merits of the present case, I deem it fit to reproduce the relevant provisions of law under which charges have been framed.
Robbery is defined under Section 390 IPC. Theft or extortion is robbery if
(i).in order to commit the theft or in committing the theft, or carrying away or attempting to carry away property obtained by theft.
(ii). the offender should have voluntarily caused/ attempts to cause to any person death or hurt or wrongful restrain or fear of instant death/hurt/wrongful restrain.
(iii) Robbery is a special and aggravated form of either theft or extortion. The chief distinguishing element in robbery is the presence of imminent fear of violence.
23. An analysis of s. 390 IPC would show that in order that theft may constitute robbery, prosecution has to establish:
(a) if in order to the committing of theft; or
(b) in committing the theft; or
(c) in carrying away or attempting to carry away property obtained by theft; or
(d) the offender for that end i.e. any of the ends contemplated by (a) to (c); or
(e) voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint.
Further, essential ingredients for punishment under S. 392 are summed up as:
(1) The accused committed theft; (2) he voluntarily caused or attempted to cause;
FIR No. 55/2008 State Vs. Anil Kumar Page no. 9
(i) death, hurt or wrongful restraint
(ii) fear of instant death, hurt or wrongful restraint; (3) he did either act for the end:
(i) of committing theft,
(ii) while committing theft
(iii) in carrying away or in the attempt to carry away property obtained by theft.
24. Section 452 IPC : House-trespass after preparation for hurt, assault or wrongful restraint.--Whoever commits house-trespass, having made prepara- tion for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine
25. Section 342 IPC: Punishment for wrongful confinement.--Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may ex- tend to one thousand rupees, or with both
26. Having perused the elements of offences under which charges have been framed, the merits of the evidence adduced shall be examined.
27. As per the version of prosecution, the accused Anil Kumar, entered the house of the complainant and committed robbery in the presence of com- plainant i.e. PW-2 and PW-10. On the perusal of entire record many glaring dis- crepancies/contradictions appeared, each of such contradictions are taken up point wise:
FIR No. 55/2008 State Vs. Anil Kumar Page no. 10
Re: Identity of the accused.
28. It is worth mentioning that the accused was known to the complainant, as it is an admitted fact the accused used to work as a servant in the house of the complainant for more than a year before the commission of the present offence. As per the story of the prosecution, the accused entered the house of the complainant in a masked face, while wearing goggles. On the aspect of identification, PW-2 (complainant) in her deposition dated 18.03.2010 had stated that during the commission of offence she tried to remove the cloth from the face of the assailant and on such removal, she could identify that the assailant was her previous servant i.e. the accused. This means, that at the time of preparation of Rukka and consequent registration of FIR, complainant was aware as to the identity of the assailant. At this juncture the relevance of FIR and Rukka Ex. PW-1/B becomes indispensable, such FIR has been exhibited as PW-1/A. On a thorough reading of FIR and rukka , one can safely conclude that the FIR has been registered against an unknown person, as the complainant has only stated that an unknown boy aged between 15-16 years entered her house and committed robbery. What is suspicious here is that the complainant despite knowing the identity of the accused chose not to disclose his name at the time of registration of FIR. Further, it is also to be noted that the assailant was stated to be a young boy of 15-16 years of age in the FIR, however it is a well-established fact that the accused at the time of commission of offence was 26-27 years old; and the approximate age of the accused must have been known to the complainant being his previous employer; then how the complainant confused the age of 26-27 years old man to that with a child, has not been explained by her during her examination. The entire version portrayed by the complainant in the FIR with respect to the identity of the accused, does not align with the version presented in her examination.
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29. This court is also conscious of the fact that an FIR is not a substantive piece of evidence, however minor discrepancies in an FIR is not fatal, but omission to name a known assailant cannot be termed as a minor discrepancy. For this purpose I place my reliance on judgment titled:-
Pandurang Chandrakant Mhatre v. State of Maharashtra (2009) 10 SCC 773, wherein it was held, that first information report is not a substantive piece of evidence and it can be used only to discredit the testimony of the maker thereof and it cannot be utilized for contradicting or discrediting the testimony of other witnesses. Although first information report is not expected to be encyclopaedia of events, but an information to the police to be "first information report" under Section 154(1) must contain some essential and relevant details of the incident. A cryptic information about commission of a cognizable offence irrespective of the nature and details of such information may not be treated as an FIR.
30. The law is well settled that an FIR recorded without any loss of time is likely to be free from embroideries, exaggerations and without anybody intermeddling with it and polluting and adulterating the same with lies. The purpose of FIR is to obtain the earliest account of a cognizable offence before there is an opportunity for the circumstances to be forgotten and embellished. It is well settled that FIR is not a substantive piece of evidence and can be used to corroborate or contradict the statement of the maker thereof. It is also equally established that trustworthiness of the prosecution story can also be judged from the FIR.
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31. It also to be noted that another eyewitness i.e. PW-10, had become hostile with respect to the identity of the accused. In his examination dated 03.08.2017, he failed to identify the accused and only stated that the assailant came with a cloth mask on his face. He stated that he has seen the accused first time in the court.
32. It is also not out of place to note that any prudent person having suffered a crime or injury at the hand of a known would first and foremost disclose the identity of such person to the police, as identity of the assailant is the most important information of all, however the complainant chose not to name the accused at the time registration of FIR and only lodged an FIR against an unknown person. From the observations made above it cannot be said that the prosecution has established the presence of the accused at the spot of crime, rather the version of the complainant with respect to the identity of the accused appears to be an afterthought, and an improvement.
Re: Perception of threat/ weapon used in the commission of crime.
33. To prove an offence under section 392 IPC, the proof of element of threat to cause hurt or wrongful restraint is essential for the purpose of the above point, it is again relevant to refer to the FIR i.e. PW-1/A and rukka (exhibit PW- 1/B), in the FIR complainant/PW-2 had clearly stated that the assailant entered the house with a toy gun in his hand, that would necessarily mean that the complainant was well aware that such toy gun cannot harm or injure her in anyway. However, during her examination dated 18.03.2010, she has only stated that the accused pointed a gun at her, and after seeing a gun pointed at her, she got sared and handed over her jewelry to the assailant. It is well established in the present case by means of seizure memos PW-4/A that gun if any used during the commission of the offence was a toy gun and not a real weapon, and the FIR clearly establishes that the FIR No. 55/2008 State Vs. Anil Kumar Page no. 13 complainant knew at the time of commission of offence that the gun was not real, then how she got intimidated by a toy gun is beyond rhyme or reason. Further during her cross examination, complainant PW-2 was contradicted/confronted on her stand with respect to the weapon used in the crime, however the witness did not tender any explanation with respect to such inconsistency, and only stated she had not stated before the police that the weapon in question was a toy gun.
34. Further, PW-10 ie. The eye witness, has completely obliterated the presence of any kind of gun, toy or real at the spot of crime. As per his version, the assailant entered the house with one wooden piece in his hand and not a gun of any kind. The pullanda containing the above-mentioned toy gun was opened in his presence, however the witness clearly stated that he cannot identify such objects.
35. It is further relevant to note that during her examination in chief complainant PW-2 has also stated that the accused, pushed her which caused her ear to bleed, however neither any medical record nor record of any treatment has been brought on record to substantiate that the complainant suffered any injury owing to the robbery committed at her home.
36. It is clear from the above discussion that the presence of threat or hurt for the purpose of charge under section 392 IPC has not been proved.
Re: Subject matter of the Robbery i.e. Jewelery
37. The description of the robbed jewelry also appears to be inconsistent. As per the version of the complainant the assailant took away her diamond ring, two gold bangles and a pair of diamond earrings, however PW-10 in his examination had stated that the complainant was only wearing jewelry in her ears and nose, and only those pieces were taken away by the assailant. On the other hand, the husband FIR No. 55/2008 State Vs. Anil Kumar Page no. 14 of the complainant who deposed as PW-3 stated that bangles necklace and gold ring has been robbed.
38. As is evident from the above, even the description of the robbed property varies from witness to witness, and is not found to be trust worthy.
Re: Recovery of articles used in crime and the stolen articles
39. In the present case, the entire stolen articles have been recovered including the articles used in the commission of the crime. With respect to the recovery of articles used in the commission of crime, one toy pistol, one goggles, and one blue handkerchief is said to have been recovered by the IO, from the local address of the accused in Bapa Nagar, Delhi. It is worth pointing out that the witness to recovery of such article i.e. PW-4 (Santosh) has denied having witnessed the recovery, rather he stated to have only signed blank papers and deposed that he was unaware of the contents of such documents. Further, the seizure memo Ex. PW- 4/A does not disclose recovery of a blue handkerchief, however surprisingly enough the pullandas made during such recovery, revealed to contain a blue handkerchief as well. The difference in the contents of pullanda and the contents of seizure memo, further chips away from the credibility of the recovery made.
40. Further in examination of IO as PW-12 on 12.03.2020, that at the time of recovery of articles from Bapa Nagar, Delhi, the owner of such house i.e. Mukesh, was present at the time of such recovery along with PW4 Santosh. On this point the deposition of PW-9 Mukesh has been thoroughly perused, it is found that such witness has not supported the version of the prosecution, rather he has categorically denied having ever known or seen the accused, he was found hostile regarding the identity of the accused. Further on perusal of such seizure memo i.e. P4 it is found that, such witness Mukesh has not been named as one of the FIR No. 55/2008 State Vs. Anil Kumar Page no. 15 witnesses.
41. With respect to the jewelry in question, it has been stated by the IO in his examination dated 12.03.2020 that at the time of recovery of the jewelry from the house of the accused in Bihar, in place of independent witness, statement of PW4 (Santosh) was recorded. However, during his examination, no question has been asked to such witness with respect to such recovery, or his visit to the hometown of the accused. On perusal of the seizure memo Ex.PW-7/A, it is revealed that nowhere in such seizure memo, signature of the witness Santosh Kumar (PW-4) has been taken, rather only police witnesses have signed, no other independent witness are said to have been present at the time of recovery of jewelry, except for police officials. However, it has been stated by the IO i.e PW-12 that, there were around 100-200 people gathered at the house of the accused, even then, the IO did not deem it fit to make an independent witness party to the seizure.
42. Further, PW4 Santosh Kumar who is also stated to have been the flat mate of accused and is shown to be the witness to recovery in Delhi has stated that police got his signatures on 4-5 blank sheets of paper and that he is not aware of any other facts of the present case. During his cross-examination, such witness also stated that the accused did not used to live with him at the relevant point of time. PW4 has categorically denied having been a witness to recovery of pistol, goggle, or any other case property in the present case.
43. At this point, credibility of recovery by police assumes important role, as lawfully affected recovery in presence of independent witness lends credence to the investigation and strengthens the case of prosecution.
44. This court is conscious of the legal position that non-joining of FIR No. 55/2008 State Vs. Anil Kumar Page no. 16 independent witnesses cannot be the sole ground to discard or doubt the prosecution case, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC
696. However, evidence in every case is to be sifted through considering the varied facts and circumstances of each individual case. As observed above, no independent public witness has been made party to the proceedings, despite ample opportunity with the IO include such witness, the only witness available ie. PW-4 resiled from his statement rather, his presence at the spot of recovery in Bihar has become a source of doubt, In such a situation, evidence of an independent witness would have rendered the much needed corroborative value, to the otherwise uncompelling case of the prosecution. On perusal of the above stated evidence, it is quite evident that the recovery so done in the present case also does not inspire confidence to associate the accused with the present case. Prosecution has failed to discharge its burden with respect to recovery of the case property from the accused.
Re: Who informed the police?
45. As per the version of PW2, the police was first informed by one Mr. Ashish Aggarwal and the same person also informed the husband of the complainant. During her examination, PW2 also stated that one tenant was residing just above her floor who heard her cry for help. However, during the examination of PW3 i.e. the husband of the complainant has stated that he received a call from his son namely Amit Aggarwal who had called up from their residence about the commission of such offence and thereafter PW3 called the concerned police station complaining about commission of such offence. However, in her cross examination dated 19.05.2010, PW-2 had stated that both her sons came back at the spot of crime with her husband. At this point, what is relevant to note is that during examination of PW2, she had categorically stated that her husband and both her sons had left for their factory in the morning and therefore, there was only her servant Dev Kumar in FIR No. 55/2008 State Vs. Anil Kumar Page no. 17 the house besides her. That would mean that the son of the complainant i.e. Amit Kumar could not have been at the house of the complainant immediately after the commission of robbery. There appears to be several versions with respect to who informed the concerned police station about the commission of offence, and who was present at the house of the complainant Re: Finger prints and version of IO
46. It is a version of the prosecution that at the spot of crime, fingerprints of the accused was lifted by the Crime Branch. However, on perusal of order sheets, it is revealed that vide order dated 14.09.2018, the Ld. Predecessor of this Court had observed that PW ASI Mahesh Kumar was the photographer in the Crime Team which inspected the spot. However, under his examination u/s 161 Cr.P.C., IO has recorded him as a Fingerprint Expert. Further, IO was directed to tender his explanation on this point in which IO had submitted that Crime Team had reached the spot at about 10:00 a.m. and they had interrogated the spot wherein photographs and fingerprints were obtained. He also stated that he had not taken the report of Crime Team or the report of fingerprint from the Crime Team and therefore, such report, if any, do not form part of the charge-sheet. The conduct of the IO with respect to material piece of scientific evidence like finger prints is found to be extremely untrustworthy, IO has simply decided to do away with a crucial piece of evidence, without having made any efforts to collect such evidence and bring it on record.
47. It can be conclusively said that fingerprints, if any, taken from the scene of crime were not produced before this Court in evidence to fasten any kind of liability on the accused.
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48. Further, the evidence of the IO is also full of inconsistencies. As observed above, IO himself has stated that independent witness Santosh and Mukesh were part of the recovery team and they had witnessed the recoveries. However, neither the witnesses nor the seizure memo is supporting the version of the IO. Further, what is very interesting to note is that in his cross-examination dated 12.03.2020, IO has stated that he had reached the spot of crime at about 9:00 am. to 9:30 a.m. He has also stated that the Crime Team reached the spot at about 10:00 a.m. However, the version of the prosecution is that the robbery in question took place at 1:15 p.m. In such a scenario, it is quite unbelievable that the IO and the Crime Team reached the spot three hours in advance. It is a glaring inconsistency which again tips the case in favor of the accused.
49. A summation of all the observations and inconsistencies pointed out above, irresistibly points towards the innocence of the accused. The burden imposed by the law of the land on the State to bring home the guilt of the accused beyond reasonable doubts, is a heavy one, but a well-founded one. In most of the criminal trials the most basic of all burdens on the prosecution is to bind/connect the accused to the scene of crime, i.e. establishing his presence on the scene of crime, is a sin- qua-non. However as observed above, prosecution has failed to establish his presence on the scene of crime, the version presented at the time of registration of FIR and during the examination of the relevant witnesses, do not establish beyond reasonable doubt that the accused was present at the time of commission of robbery. Further, threat or fear is an essential ingredient of section 392 IPC, but threat perception in the present case appears to be highly dubious.
50. In its entirety, it can be safely concluded that the prosecution has failed to discharge its burden for the purpose of Section 392 IPC.
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51. With respect to charge under section 452 IPC, i.e House-Trespass, as the presence of the accused at the spot of crime is doubtful, then its necessary corollary would be that the prosecution also failed to prove that the accused tress- passed the house of the complainant at any point of time, and consequently, the charges u/s 342 i.e. Wrongful confinement also remains unproved.
52. Accordingly, in view of aforesaid observations, the prosecution has failed to prove its case against accused. Therefore, accused Anil Kumar is acquitted for the offences U/s 392/452/342 IPC charged against him.
Digitally signed by CHARU CHARU ASIWAL
ASIWAL Date:
2022.03.29
18:16:08 +0530
PRONOUNCED IN THE OPEN COURT (CHARU ASIWAL)
TODAY 29th MARCH, 2022 MM-04 (CENTRAL),
DELHI
FIR No. 55/2008 State Vs. Anil Kumar Page no. 20