Delhi District Court
State vs . Manoj & Ors. on 18 April, 2022
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IN THE COURT OF MS. SURBHI
METROPOLITAN MAGISTRATE-12, SOUTH WEST,
DWARKA COURTS, DELHI
FIR No. 276/14
PS Jaffarpur Kalan
State Vs. Manoj & Ors.
U/s 393/427/506/34 IPC
CIS No. 433119/16
JUDGMENT
(a) CIS No. 433119/16
(b) Date of offence 02-03.11.2014
(c) Complainant Sh. Ram Niwas
S/o Sh. Surja Ram
(d) Accused (1)Sushil Kumar S/o Rishi Pal Singh
(2) Yoginder S/o Late Sh. Kapur Singh
(3) Manoj S/o Prahlad Singh and
(4) Kapil Sansanwal S/o Diwan Singh
(e) Offence 393/427/506/34 IPC
(f) Plea of accused Plead not guilty
(g) Date of Institution 25.10.2016
(h) Final Order Acquitted
(i) Date when judgment was 01.04.2022
reserved
(j) Date of judgment 18.04.2022
FIR No. 276/14 State Vs. Manoj Page no.1 of 12
Digitally signed by
SURBHI SURBHI
Date: 2022.04.18
16:42:33 +05'30'
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BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. By this judgment, I shall dispose of the case of the prosecution based on FIR no. 276/14 PS Jaffapur Kalan against the accused persons for the offence U/s 393/427/506/34 IPC FACTUAL MATRIX
2. The allegations against the accused persons as per the story of prosecution are that on 02-03.11.2014 at about 11:15pm, at Dhansa Road, near Dhansa Village, New Delhi within the jurisdiction of PS JP Kalan all accused persons namely Sushil Kumar, Yoginder, Manoj and Kapil Sansanwal alongwith Aman (JCL) in furtherance of their common intention attempted to commit robbery on the complainant Sh. Ram Niwas and also committed mischief by hurling stones on vehicle bearing regn. no. RJ-21 GA 0690 belonging to the complainant Sh. Ram Niwas and broke the glass of the said vehicle and also committed criminal intimidation by threatening the complainant Sh. Ram Niwas with dire consequences and thereby they all committed offences punishable u/s 393/427/506/34 IPC and within the cognizance of this court.
INVESTIGATION AND APPEARANCE OF ACCUSED
3. After completion of the investigation, charge-sheet was filed. Cognizance was taken vide order dated 28.10.2016 and the accused persons were supplied with copies of challan alongwith annexures in compliance of Section 207 of The Code of Criminal Procedure, 1973. Charge for the offence u/s 393/427/506/34 IPC was put to accused persons vide order dated 28.02.2017 to which the accused persons pleaded not guilty and claimed trial. It is pertinent to mention here that vide order dt. 30.09.2021, the offence u/s 427/506 r/w 34 IPC gets compounded on the statement of the complainant and the accused persons were acquitted for the offence u/s 427/506 r/w 34 IPC and the trial proceeds further only for the offence u/s 393 r/w 34 IPC.
FIR No. 276/14 State Vs. Manoj Page no.2 of 12
SURBHI
Digitally signed by SURBHI
Date: 2022.04.18 16:42:51
+05'30'
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PROSECUTION EVIDENCE
4. In order to prove its case, prosecution has examined 03 witnesses and the following documentary evidences.
Ex. PW1/A to Arrest memos of all accused persons.
Ex.PW1/D
Ex. PW1/E TO Disclosure statements of accused persons.
EX.PW1/H
Ex. PW1/I Point out memo
Ex. PW1/J Seizure Memo of Scorpio Car bearing regn.
no. DL-3C-AA-3131
Ex. PW1/K AND Photographs of truck and scorpio car
EX.PW1/L
Ex. PW2/A Original tehrir
Ex. PW2/B Site plan
5. Ct. Pawan has been examined as PW1 who deposed that on the intervening night of 02-03.11.2014 he was posted at PS JP Kalan as a ct and on that day his duty timings were from 08:00pm to 08:00am and he was on emergency duty. He further stated that DO received a call with regard to attempt to robbery of truck bearing regn. No. RJ-21GA-0690 and thereafter he alongwith SI Nanag Ram reached the spot I.e Surhera Road where the above-mentioned truck was already stationed and the driver and conductor of the truck was also present there. He further deposed that IO interrogard the driver and conductor of the truck. He further deposed that the driver of the truck told the accused Sushil Kumar was demanding money from them. He further deposed that accused Manoj, Sushil Kumar, Kapil and Yogender Singh were in a scorpio car DL3CAA-3131 and were caught from Surhera Mor by QRT vehicle. PW1 correctly identified the accused persons in the court. He further deposed that one Aman S/o Ram Lakhan was also present in the scorpio car. He further deposed that statement of Ram Niwas was recorded by the IO/SI Nanag Ram who prepared the Tehrir and FIR No. 276/14 State Vs. Manoj Page no.3 of 12 Digitally signed by SURBHI SURBHI Date: 2022.04.18 16:43:02 +05'30' 4 thereafter PW1 was sent to the PS for registration of FIR. He further deposed that rukka was handed over to him for registration of FIR and he went to the PS and got the FIR registered. He further deposed that he came back at the spot and handed over the FIR and original to IO. He further deposed that all the four accused persons were arrested vide memo as Ex.PW1/A to Ex.PW1/D respectively bearing his signatures at point A and disclosure statement of accused persons were recorded as Ex.PW1/E to Ex.PW1/H bearing signatures at point A. he further deposed that point memo was prepared at the instance of accused persons as Ex.PW1/I bearing signatures at point A and scorpio car bearing regn. no. DL-3C-AA-3131 was seized vide seizure memo as Ex.PW1/J bearing signatures at point A. PW1 correctly identified the offending vehicle i.e scorpio car and truck from the photographs as Ex.PW1/K (colly) and Ex.PW1/L (Colly) respectively and the scorpio car was deposited in malkhana. 5.1 PW1 cross examined by Ld. Defence counsel. In his cross examination, he stated that IO received the call at about 11:30pm and IO made an entry before leaving the PS. He further stated that he did not know the relevant entry number. He stated that he went to the spot in a government gypsy which was being driven by him and reached at the spot at about 12 midnight. He further stated that IO recorded statement of two persons who were sitting in the truck. PW1 denied the suggestion of Ld. Defence counsel that he did not join the investigation of the present case at any point of time or that entire paper work done at the PS and not at the spot. He further denied the suggest that he deposed falsely. After his cross examination, he was discharged.
6. Sh. Ram Niwas has been examined as PW2 who deposed that he was residing at the abovesaid address alongwith his family and he was driver by profession and driving vehicle regn. no. RJ-21-GA-0690. He further deposed that he did not remember the day of incident when he came to Delhi from Nagaur for Meerut via Dhansa Road. He further stated that it was night at about 11:00-11:15pm a vehicle in some persons obstructed him but he did not remember the registration number over which a minor FIR No. 276/14 State Vs. Manoj Page no.4 of 12 SURBHI Digitally signed by SURBHI Date: 2022.04.18 16:43:14 +05'30' 5 quarrel took place and he called at 100 number. He deposed that police came and recorded his statement. PW1 correctly identify his signatures at point A vide Ex.PW2/A. He further deposed that he does not know anything more in this case what happened thereafter and he studied upto class 8th and can read and write Hindi. PW 2 cross examined by Ld. APP for the state seeks as he was not disclosed the complete facts. In his cross examination he deposed that he does not know whether the date of incident was 02.11.2014. He denied the suggestion that the abovesaid persons threw stones on his said vehicle that is why the wind screen of cleaner side of the vehicle was broken. He further denied the suggestion that that they were asking for money and threatening that otherwise he would face dire consequences. PW2 further denied the suggestion that they were in drunken condition and that they were threatening that he should give all the belongings and money otherwise he would face dire consequences. He further denied the suggestion that 5 persons were apprehended in this case vide namely Sushil, Manoj, Yogender, Kapil and Aman. He further denied that the said vehicle was scorpio white colour DL-3C-AA-3131 and he does not know whether the said facts were mentioned in the statement on the day of incident when IO recorded in his statement as Ex.PW2/A. He further denied the suggestion that a detailed site plan was prepared at his instance as Ex.PW2/B. he further denined the suggestion that the said persons were arrested vide arrest memo already Ex.PW1/A, Ex.PW1/B, Ex.PW1/C and Ex.PW1/D bearing his signature at point B. (vol. IO had obtained his signature on blank papers). PW2 denied the suggestion that he had signed disclosure memo of the accused persons vide already Ex.PW1/E, Ex.PW1/F, Ex.PW1/G and Ex.PW1/H (vol. IO had obtained his signature on blank papers). He further denied that seizure memo of scorpio bears his signature at point B vide Ex.PW1/J. (vol. IO had obtained his signature on blank papers). He further stated that it is correct that Ex.PW1/K in which there were photographs of his truck and that Ex.PW1/L in which there are photographs of scorpio. PW2 denied the suggestion that he was deposed falsely as either he had been won over by the accused or had been taken some kinds or FIR No. 276/14 State Vs. Manoj Page no.5 of 12 Digitally signed by SURBHI SURBHI Date: 2022.04.18 16:43:28 +05'30' 6 deposing in favour of accused persons due to threat. He further denied the suggestion that IO had recorded his statement as Mark R1 and he does not recall his memory due to lapse of time that the person present in the court as an accused were the same person who were arrested and committed offence against him. PW2 was discharged after Nil Cross examined by Ld. Defence counsel.
7. Sh. Mohd. Munshi has been examined as PW3 who deposed that he was working as helper by profession on vehicle regn. no. RJ-21-GA-0690. He further deposed that he did not remember the day of incident when he came to Delhi from Nagaur for Meerut via Dhansa Road alongwith driver Ram Niwas. He further deposed that it was night but he did not remember the time of the incident whereas vehicle in some persons obstruct them but he did not remember the registration number over which a minor quarrel took place and driver Ram Niwas called at 100 number. He further deposed that police came there and he did not know anything more in this case what happened thereafter.
PW3 cross examined by Ld. APP for the state as he was not disclosed the complete facts. In his cross examination, he deposed that he does not know whether the date of incident was 02.11.2014. PW3 denied the suggestion that the accused persons threw stones on his said vehicle that is why the wind screen of cleaner side of the vehicle broken. He further denined the suggestion that they were asking for money and threatening that otherwise he would face dire consequences and that they were in drunken condition. He further denied the suggestion that they were threatened that he should give all the belongings and money otherwise he would face dire consequences. He further denied the suggestion that 5 persons were apprehended in this case and that he does not know the name of the apprehended person. He further stated that he does not know that the said vehicle was scorpio white colour DL-3C-AA-3131 and denied the suggestion . He denied the suggestion that he was deposed falsely as either he had been won over by the accused or had been taken some kinds or deposing in favour of FIR No. 276/14 State Vs. Manoj Page no.6 of 12 SURBHI Digitally signed by SURBHI Date: 2022.04.18 16:43:40 +05'30' 7 accused persons due to threat. He further denied the suggestion that IO had recorded my statement Mark M1. He further deposed that he did not recall his memory due to lapse of time that the person present in the court today as an accused were the same person who were arrested and committed offence against them. PW3 was discharged after nil cross examination.
STATEMENT OF ACCUSED
8. Prosecution Evidence was thereon closed by the Court and statement of accused u/s 313 r/w 281 Cr.P.C stands dispensed with vide order dated 01.04.2022.
ARGUMENTS
9. Final arguments were heard at length. I have gone through the documents on record, evidence and submissions forwarded by counsel for the accused and Ld. APP for the State.
10. To bring home the guilt of the accused persons, the following ingredients of Section 393 IPC has to be proved by the prosecution beyond reasonable doubt:-
Section 393 IPC :- Attempt to Commit Robbery (1) all the elements required to prove extortion needs to be proved u/s 383 IPC;
(2) the accused while committing the aforesaid extortion puts in fear the person extorted of instant death or of instant hurt or wrongfully restrained that person or some other person; (3) by putting in fear induces the person to deliver up the thing extorted.
FIR No. 276/14 State Vs. Manoj Page no.7 of 12 Digitally signed by SURBHI SURBHI Date: 2022.04.18 16:43:55 +05'30' 8
11. During the course of trial, prosecution started examining its witnesses to substantiate the allegations against the accused persons.
12. PW1 Ct. Pawan is the official who reached the spot of the offence alongwith the IO on receiving a call. PW1 in his examination stated that on receiving a call with regard to attempt to robbery, he alongwith IO/SI Nanag Ram reached at the spot. He further stated that he was the one who was sent to concerned PS for registration of FIR after handing over the rukka to him by IO/SI Nanag Ram. He further stated that all the four accused persons were arrested and disclosure statements were recorded in his presence. He further stated that the offending scorpio car bearing regn. no. DL-3C-AA-
3131 was seized in his presence and he also correctly identified both the vehicles. He was cross examined by the Ld. Defence counsel, however, the testimony of PW1 will only be crucial after the appreciation of testimony of PW2 the complainant and PW3 the eye witness as PW1 is only a witness after the incident.
13. PW2 who is the complainant himself deposed that he is a driver by profession and on the date of the incident he was driving a truck bearing regn. No, RJ-21-GA- 0690. He further stated that he does not remember the date of the incident, however it was at about 11:00-11:15pm that some persons in a vehicle obstructed him, however, he does not remember the registration number of the vehicle which obstructed his truck. PW2 further stated that a minor quarrel took place on the above incident and he called 100 number upon which police officials came and recorded his statement.
14. On the above testimony, Ld. APP for the State sought permission to cross examine PW2 and he was permitted to cross examine him as he was resiling from his earlier statement. PW2 stated in his cross examination by the Ld. APP For the State that he does not remember the date of the incident. He further denied the suggestion FIR No. 276/14 State Vs. Manoj Page no.8 of 12 Digitally signed by SURBHI SURBHI Date: 2022.04.18 16:44:10 +05'30' 9 given by Ld. APP for the state that the accused persons throw stones on his vehicle because of which the windscreen of the vehicle was got broken. He also denied the suggestion that accused person demanded money from him and threatened him of dire consequences if money was not given to them. He also denied the suggestion that accused persons were in a drunken state. He also failed in identifying the offending scorpio car. He further denied the suggestion that a site plan was prepared at his instance or that the accused persons were arrested in his presence or that the offending scorpio car was seized or that disclosure statement of accused persons were recorded in his presence. He voluntarily stated that IO has obtained his signatures on some blank papers. The attention of PW2 was also drawn towards the accused persons present in the court, however, he also failed in identifying the accused persons and deposed that due to lapse of time, he could not recall whether the persons present in the court are the same persons who obstructed him or not. The PW2 also firmly denied the suggestion that he was deposing falsely as he has been won over by the accused or has taken something in kind to depose in favour of accused persons or due to threat he is falsely deposing.
15. PW3 is the helper working alongwith the complainant and was with the complainant on the date of incident as per the prosecution theory. PW3 in his examination in chief deposed that he does not remember the date of incident neither he remembers the time of the incident nor the registration number of the vehicle which obstructed them.
16. On the above testimony, Ld. APP for the State sought permission to cross examine PW3 and he was permitted to cross examine him as he was resiling from his earlier statement. PW3 stated in his cross examination by the Ld. APP for the State that he does not remember the date of the incident. He further denied the suggestion given by Ld. APP for the state that the accused persons throw stones on the truck because of FIR No. 276/14 State Vs. Manoj Page no.9 of 12 Digitally signed by SURBHI SURBHI Date: 2022.04.18 16:44:23 +05'30' 10 which the windscreen of the truck got broken. He also denied the suggestion that accused person demanded money from him and threatened him of dire consequences if money was not given to them. He also denied the suggestion that accused persons were in a drunken state. He also failed in identifying the offending scorpio car. He further firmly denied the suggestion of Ld. APP for the state that he is deposing falsely as he is either won by the accused person or that he has received some consideration for deposing falsely or that due to threat from the accused persons he is deposing in favour of accused persons. He also failed in identifying the accused persons present in the court.
17. Prosecution Evidence were closed vide order dt. 01.04.2022 by this court after observing that the testimonies of the eye witnesses PW2 and PW3 does not support the case of the prosecution and nothing fruitful has come on record even during the cross examination of PW2 and PW3 conducted by the Ld. APP for the State. There were no other witnesses in the list of prosecution to prove the identity of accused persons and in absence of any material witnesses, examining the other witnesses who are police officials and only witnesses post incident, would be a futile exercise which only waste the precious time of the court.
18. Perusal of the record shows that the prosecution had arrayed only two eye witnesses of the incident I.e PW2 and PW3, however, both of them failed to identify the accused persons. This court is mindful of this fact that in view of the nature of offence allegedly committed by the accused persons, identity of the accused persons as assailants is one of the most essential ingredients for fastening criminal liability on the accused persons and in the absence of any material evidence establishing the identity of accused persons as offenders, it cannot be said that the prosecution has proved his case beyond reasonable doubt against the accused persons.
FIR No. 276/14 State Vs. Manoj Page no.10 of 12 Digitally signed by SURBHI SURBHI Date: 2022.04.18 16:44:36 +05'30' 11
19. Apart from the identity of the accused persons being established, the prosecution needs to prove beyond reasonable doubt such incident as alleged as happened, however, PW2 and PW3 in their examination testified that some unknown persons in an unidentified vehicle had obstructed their truck and a minor quarrel had happened upon the same, however, both the eye witnesses denied the suggestion by the Ld. APP for the State that incident of the robbery has ever taken place on the fateful day. Both PW2 and PW3 denied the suggestion that the persons who obstructed their truck has also demanded money from them and threatened them for dire consequences in failing to give money to them.
20. It is pertinent to mention that under Indian Evidence Act, the evidence of hostile witness is not discarded completely and can be relied upon in part as the legal maxim, "false in uno false in omnibus" is not applicable in India. The Apex Court in the case of Rohtash Kumar Vs. State of Haryana (2013) 14SCC 434, held as under:-
25. It is a settled legal proposition that evidence of a prosecution witness cannot be rejected in toto, merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced, or washed off the record altogether. The same can be accepted to the extent that their version is found to be dependable, upon a careful scrutiny thereof.
21. In the present case, the evidence available on record is not sufficient to help the prosecution. PW2 and PW3 not only failed in identifying the accused persons but they also denied the fact that the incident of attempt to robbery has ever taken place with them on the fateful day. They further deposed that the police officials has taken their signatures on some blank papers and no proceedings during the investigation in this case were conducted in their presence. In their cross examination also no incriminating FIR No. 276/14 State Vs. Manoj Page no.11 of 12 Digitally signed by SURBHI SURBHI Date: 2022.04.18 16:44:49 +05'30' 12 evidences have come on record suggesting the involvement of accused persons. In view of the testimony of PW2 and PW3, the deposition of PW1 will also not help the prosecution as PW1 only deposed qua the proceedings taken place after the incident and not the incident itself. As there is no evidence at all to link the accused persons with the commission of the alleged offence, the accused persons are entitled to be acquitted of the charges.
22. In view of the aforesaid discussion, observations and testimonial analysis, this court is of the considered opinion that the prosecution has miserably failed to establish that accused persons in furtherance of their common intention attempted to commit robbery on the complainant let alone establishing the same beyond reasonable doubt. In view of the same, all the accused persons namely Sushil Kumar, Yoginder, Manoj and Kapil Sansanwal are acquitted for offence punishable u/s 393 r/w 34 IPC. The B/B & S/B, if any stands discharged.
23. The original documents of the sureties, if any on record, be released to the said surety after cancellation of the endorsements thereupon as and when so applied.
File be consigned to record room after due compliance.
Digitally signed by Announced in the open court on 18.04.2022 SURBHI SURBHI Date: 2022.04.18 16:45:02 +05'30' (SURBHI) M.M.-12/SWD/DWARKA COURTS DELHI FIR No. 276/14 State Vs. Manoj Page no.12 of 12