Delhi District Court
State vs . (1). Ravi @ Gatha on 21 May, 2014
FIR No. 82/11; U/s 394/397/201/34; PS Vijay Vihar 21.05.2014
IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS
JUDGE-04 (NORTH): ROHINI COURTS: DELHI
Session Case No. 05/1/14
Unique Case ID No. 02404R0310112011
State Vs. (1). Ravi @ Gatha
S/o Late Sh. Rajesh
R/o Jhuggi No. B-45, P-1 Block,
Sultan Puri, Delhi.
(2). Ravi
S/o Sh. Jogi Ram
R/o Jhuggi No. 22, P-1 Block,
Sultan Puri, Delhi.
FIR No. : 82/11
Police Station : Vijay Vihar
Under Sections : 392/397/201/34 IPC
Date of committal to Sessions Court: 08.06.2012
Date on which judgment was reserved: 15.05.2014
Date on which Judgment pronounced: 21.05.2014
JUDGMENT
In brief, the prosecution story as mentioned in the chargesheet is that on 12.03.2011, intimation was received in PS Vijay Vihar at about 8.10 pm regarding admission of one Kanhiya (PW4) S/o Sh. Radhey Shyam who was stabbed with knife, in BSA Hospital. The said intimation was recorded vide DD No. 76B and was handed over to ASI Satyavir Singh (PW1) who alongwith Ct. Ram Mehar (PW11) reached the said hospital. Injured Kanhiya was found admitted in the said hospital. ASI Satyavir Singh collected MLC No. 1753/11 of injured Kanhiya who was declared fit for statement. ASI Satyavir Singh recorded statement of injured Kanhiya wherein he stated that on that day i.e. 12.03.2011 at about 7.15 pm while he was returning to his State V/s Ravi @ Gatha etc. ("Acquitted") Page 1 of 20 FIR No. 82/11; U/s 394/397/201/34; PS Vijay Vihar 21.05.2014 house after his duty was over and reached at road near DDA park, Village Rithala, two boys came there and caught hold of him. When he tried to resist, one of those two boys took out knife and stabbed it on left hand side of his abdomen. Injured further told ASI Satyavir Singh that when the assailants again inflicted knife injury, he (complainant) tried to avoid said blow with his right hand due to which knife hit his right hand. Ultimately, both the said boys robbed him of his Chinese mobile phone make GILD having SIM No. 9953021393 and pushed him to the ground. He (complainant) ran towards police picket where he narrated the entire incident to HC Shailender (PW7) present in the police picket. HC Shailender took him to BSA Hospital where he was got admitted. The complainant also told ASI Satyavir Singh that both the said boys were in the age group of 2324 years. On the basis of said statement, FIR in question was registered in respect of offence U/s 394/34 IPC and investigation was entrusted to SI Ramesh Thakur.
SI Ramesh Thakur recorded statements of witnesses and obtained opinion on MLC of injured Kanhiya. During the course of investigation, accused Ravi S/o Jogi Ram was arrested on 27.08.2011 in case FIR No. 373/11 of PS Sultanpuri wherein he confessed his involvement alongwith involvement of coaccused Ravi @ Gatha in the present case. Consequently, said accused was formally arrested in this case and his police custody was obtained from the Court. During police custody, coaccused Ravi @ Gatha S/o Rajesh was also arrested at the instance of accused Ravi S/o Jogi Ram. It is alleged that accused Ravi @ Gatha got recovered robbed State V/s Ravi @ Gatha etc. ("Acquitted") Page 2 of 20 FIR No. 82/11; U/s 394/397/201/34; PS Vijay Vihar 21.05.2014 mobile phone of the complainant on 08.09.2011. On 23.09.2011, both the accused refused to join judicial TIP. The nature of injury sustained by the complainant Kanhiya was opined to be grievous and offences U/s 397/201 IPC were also added in the present case. After completion of investigation, chargesheet had been filed before the Court.
After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame the charge in respect of offence u/s 394/34 IPC against both the accused persons namely Ravi @ Gatha and accused Ravi S/o Jogi Ram and separate charge in respect of offence U/s 397 IPC was framed against accused Ravi @ Gatha vide order dated 04.08.2012 to which accused persons pleaded not guilty and claimed trial.
In order to prove its case, the prosecution has examined as many as eleven witnesses namely PW1 ASI Satyavir Singh, PW2 Ct. Naveen Kumar, PW3 Dr. Prashant Saxena, PW4 Sh. Kanhiya (complainant), PW5 HC Sanjeev Yadav, PW6 Ct. Prithvi Singh, PW7 HC Shailender Kumar, PW8 Ct. Ramakant, PW9 SI Ramesh Thakur, PW10 Ld. MM Sh. Dharmender Singh and PW11 Ct. Ram Mehar during trial till 21.03.2014.
Thereafter, statements U/s 313 Cr.P.C. of both the accused persons were recorded during which all the incriminating evidence were put to them which they denied. The defence of both the accused is of general denial. Both the accused claimed that they have been falsely implicated in State V/s Ravi @ Gatha etc. ("Acquitted") Page 3 of 20 FIR No. 82/11; U/s 394/397/201/34; PS Vijay Vihar 21.05.2014 this case being B.C. of the area and just to solve the unsolved cases, by the police. However, both the accused did not wish to lead Defence Evidence.
I have already heard Sh. V.K. Negi, Ld. Additional PP on behalf of State, Ld. counsel Sh. Kulwant Singh Advocate on behalf of accused Ravi @ Gatha and Ld. Amicus Curiae Sh. Shubham Asri Adv on behalf of accused Ravi S/o Jogi Ram. I have also gone through the material available on record.
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 examined during trial. The testimonies of prosecution witnesses is detailed as under: PUBLIC WITNESSES PW4 namely Kanhiya is the complainant in this case, who was stabbed with knife and was robbed of his Chinese mobile phone making GILD as per the case of prosecution. The said witness entered into witness box and deposed on the lines of prosecution story as discussed hereinabove. He categorically deposed that two boys had snatched his purse and mobile phone. When he protested, one of them gave knife blow on left side of his abdomen near chest. He also proved his statement Ex.PW1/B recorded by the police. He also correctly identified both the accused persons to be the assailants involved in the commission of offences against him. He also disclosed the SIM number of his mobile phone as 9953021393 and identified the mobile phone Ex.P1 during trial. He has been cross examined at length State V/s Ravi @ Gatha etc. ("Acquitted") Page 4 of 20 FIR No. 82/11; U/s 394/397/201/34; PS Vijay Vihar 21.05.2014 on behalf of both the accused persons.
POLICE WITNESSES PW1 ASI Satya Singh and PW11 Ct. Ram Mehar have deposed about their visit to BSA Hospital on 12.03.2011 after receipt of DD No. 76B; obtaining MLC of injured Kanhiya Lal and recording statement Ex.PW1/B of injured Kanhiya Lal; preparing rukka / endorsement Ex.PW1/C and getting the FIR registered through Ct. Ram Mehar.
During his cross examination, PW1 ASI Satyavir Singh denied that rukka was ante timed or that he never visited the place of incident.
In his cross examination, PW11 Ct. Ram Mehar denied that the injured did not give any statement to ASI Satyavir Singh in his presence. He further denied that he did not visit PS Vijay Vihar alongwith any rukka for registration of FIR.
PW2 Ct. Naveen Kumar deposed about the investigation conducted by SI Ramesh Thakur alongwith him on 08.09.2011. He deposed about the factum regarding formal arrest of accused Ravi S/o Jogi Ram in court premises on 08.09.2011 vide arrest memo Ex.PW2/A and the subsequent arrest of coaccused Ravi @ Gatha at the instance of accused Ravi S/o Jogi Ram vide arrest memo Ex.PW2/B. He also deposed about the recovery of mobile phone from jhuggi no. 130, P1 Block, Sultanpuri at the instance of accused Ravi @ Gatha; preparing pullanda of said mobile phone; its sealing with the seal of PK and seizure thereof vide memo Ex.PW2/D. He State V/s Ravi @ Gatha etc. ("Acquitted") Page 5 of 20 FIR No. 82/11; U/s 394/397/201/34; PS Vijay Vihar 21.05.2014 also deposed about pointing out memo Ex.PW2/E being prepared at the instance of accused Ravi @ Gatha. The said witness also identified mobile phone Ex.P1 during trial. This witness has not been cross examined on behalf of accused Ravi S/o Jogi Ram. However, he has been cross examined at length on behalf of accused Ravi @ Gatha.
PW5 HC Sanjeev Yadav has proved factum regarding registration of FIR by him on 12.03.2011. He proved the copy of FIR in question as Ex.PW5/A and his endorsement Ex.PW5/B on the rukka at point A to A1. He has not been cross examined by any of the accused despite grant of opportunity.
PW6 Ct. Prithvi Singh has proved factum of recording DD No. 76B regarding admission of injured Kanhiya Lal S/o Radhey Shyam with alleged history of stab injury with knife in BSA Hospital on 12.03.2011. He proved copy of DD entry as Ex.PW6/A. However, he has not been cross examined by any of the accused despite grant of opportunity.
PW7 HC Shailender Kumar has deposed about visit of injured Kanhiya to him at Rithala Picket at about 7.45 pm on 12.03.2011. He stated that he had taken the said injured to BSA Hospital and got him admitted there. In his cross examination on behalf of both the accused, he explained that he was on patrolling duty and was not posted at picket duty on that day. He was confronted with his statement u/s 161 Cr.P.C. Ex.PW7/DA wherein he had stated before IO that he was on picket duty from 8 am to 8 pm. PW8 Ct. Ramakant has deposed about the apprehension of State V/s Ravi @ Gatha etc. ("Acquitted") Page 6 of 20 FIR No. 82/11; U/s 394/397/201/34; PS Vijay Vihar 21.05.2014 accused Ravi S/o Jogi Ram by SI Bharat Bhushan on 27.08.2011 in case FIR No. 373/11 in PS Sultanpuri and recording of disclosure statement Ex.PW8/A of said accused by SI Bharat Bhushan regarding his involvement alongwith involvement of coaccused Ravi @ Gatha in the present case. During his cross examination on behalf of accused Ravi S/o Jogi Ram, he denied the suggestion that disclosure statement was recorded lateron while sitting in the Police Station itself. In cross examination on behalf of accused Ravi @ Gatha, he denied the suggestion that accused Ravi S/o Jogi Ram did not make any disclosure statement regarding his involvement alongwith coaccused Ravi @ Gatha in the present case.
PW9 SI Ramesh Thakur is the IO of this case. He deposed about the entire investigation conducted by him from 12.03.2011 till the completion thereof. He proved arrest memo Ex.PW2/A of accused Ravi S/o Jogi Ram, arrest memo Ex.PW2/B of accused Ravi @ Gatha and seizure memo Ex.PW2/D of mobile phone recovered at the instance of accused Ravi @ Gatha. He also proved confessional statement Ex.PW9/A made by accused Ravi @ Gatha as well as pointing out memo Ex.PW2/F prepared at the instance of said accused. He also exhibited TIP proceedings of both the accused as Ex.PW9/B and deposed that both the accused refused to participate in judicial TIP. He also identified both the accused persons as well as mobile phone Ex.P1 during trial.
Both the accused persons have cross examined PW9 SI Ramesh Thakur at length. During said cross examination, he explained that he State V/s Ravi @ Gatha etc. ("Acquitted") Page 7 of 20 FIR No. 82/11; U/s 394/397/201/34; PS Vijay Vihar 21.05.2014 alongwith Ct. Naveen Kumar, accused Ravi S/o Jogi Ram and driver of private vehicle had gone to the jhuggi of accused Ravi @ Gatha at Sultanpuri. It was raining heavily at that time. He admitted that place of recovery of mobile phone was a public thorough fare but clarified that due to heavy rain, no public person was present there at that time due to which he did not make any effort to join any independent public person during recovery proceedings. Accused Ravi @ Gatha was not previously known to him. He denied that there was any exchange of hot words between him and accused Ravi @ Gatha and his mother in Police Station Vijay Vihar about 23 days prior to 08.09.2011 due to which he got him falsely implicated in this case in order to teach him lesson. The mobile phone was lying below a small table inside jhuggi of accused Ravi @ Gatha. He admitted that mobile phone Ex.P1 was not having any IMEI number but explained that since it was Chinese mobile, it was not having any IMEI number. He denied the suggestion that no mobile phone was recovered from the jhuggi of accused Ravi @ Gatha or that said mobile phone was planted upon the said accused.
FORMAL WITNESSES PW3 Dr. Prashant Saxena has deposed about the medical examination of injured Kanhiya by Dr. Dinesh Kumar Bataya in BSA Hospital. He also identified the handwriting and signature of Dr. Dinesh Kumar Bataya on MLC Ex.PW3/A of injured Kanhiya. He explained that said injured was found having 2.5 cm x 0.5 cm traverse penetrating wound in State V/s Ravi @ Gatha etc. ("Acquitted") Page 8 of 20 FIR No. 82/11; U/s 394/397/201/34; PS Vijay Vihar 21.05.2014 the left hypochondrium just above the costal margin, omentum coming out through the wound and no active bleeding from the wound externally. The nature of injuries were opined as grievous. The said witness has not been cross examined by any of the accused despite grant of opportunity.
PW10 Sh. Dharmender Singh, Ld. M.M. has proved TIP proceedings of both the accused as Ex.PW9/D and testified that both the accused had refused to participate in judicial TIP on the ground that they had been shown to the witness by the police. Both the accused preferred not to cross examine the said witness despite grant of opportunity. ARGUMENTS ADVANCED AND CASE LAW CITED While opening the arguments, Ld. Addl. PP submitted that prosecution has been able to establish the charges levelled against both the accused persons. Therefore, both the accused should be convicted accordingly. Ld. Addl. PP also referred to the testimonies of prosecution witnesses more particularly that of PW4 Sh. Kanhiya (complainant), medical evidence and the testimonies of recovery witnesses namely PW9 SI Ramesh Thakur and PW2 Ct. Naveen Kumar in support of his submission that all those prosecution witnesses have fully supported the case of prosecution on all material points.
Per contra, ld. defence counsels assailed the testimony of complainant i.e. PW4 Kanhiya by referring to relevant portion of his cross examination wherein he claimed to have told the police that offenders also State V/s Ravi @ Gatha etc. ("Acquitted") Page 9 of 20 FIR No. 82/11; U/s 394/397/201/34; PS Vijay Vihar 21.05.2014 tried to snatch his purse but they could not succeed whereas said portion was not found recorded in his police statement Ex.PW1/B when he was confronted in this regard. They also referred to the relevant portion of cross examination of this witness wherein he claimed not to have told the police about the exact height of persons, who had robbed him but the height of offenders being 5 feet 7 inches was found mentioned in his police statement Ex.PW1/B when he was confronted with the same. Both the ld. defence counsels vehemently argued that the testimony of aforesaid witness is full of lies and therefore, it does not inspire confidence. In this regard, ld. defence counsels referred to relevant portion of examination in chief of PW4 wherein he claimed that while he was admitted in the hospital, police officials used to bring some persons in the hospital for their identification but he did not identify any of them. Ld. defence counsels argued that PW4 had been called in the police station and accused were shown to him in the police station before getting their judicial TIP conducted due to which no adverse inference should be drawn against them for their refusal to participate in TIP proceedings.
Another bone of contention raised by ld. defence counsels is that identification of accused by a witness for the first time during trial, is of no value in view of the provision contained in Section 9 of Indian Evidence Act. In order to buttress their said submission, ld. defence counsels also placed reliance upon judgment of our own High Court reported at 1988 Cri.L.J. 780 and decision of Hon'ble Apex Court reported at AIR 1983 SC 367.
Firstly, I shall deal with Section 397 IPC charged against accused State V/s Ravi @ Gatha etc. ("Acquitted") Page 10 of 20 FIR No. 82/11; U/s 394/397/201/34; PS Vijay Vihar 21.05.2014 Ravi @ Gatha. It is needless to mention here that in order to bring home the charge in respect of offence U/s 397 IPC, the prosecution must produce convincing evidence on record to prove that the weapon used by an accused was a deadly weapon. It has been held by our own High Court in the matter titled as 'Charan Singh Vs. The State' reported at 1988 Cr.L.J NOC 28 (Delhi) that in the absence of recovery of knife which was allegedly used at the time of commission of the robbery/dacoity, it cannot be presumed that the knife so used was a deadly weapon. The Hon'ble High Court observed in the said judgment as under: "............. At the time of committing dacoity one of the offenders caused injury by knife on the hand of the victim but the said knife was not recovered. In order to bring home a charge under S. 397 the prosecution must produce convincing evidence that the knife used by the accused was a deadly weapon. What would make knife deadly is its design or the method of its use such as is calculated to or is likely to produce death. It is, therefore, a question of fact to be proved by the prosecution that the knife used by the accused was a deadly weapon. In the absence of such an evidence and particularly, the non recovery of the weapon would certainly bring the case out of the ambit of S.397............." Similar view has been taken by our own High Court in subsequent judgments reported at MANU/DE/3149/2009 and 2011 Criminal Law Journal 901.
The facts of the present case are squarely covered by the aforesaid decisions of our own High Court.
State V/s Ravi @ Gatha etc. ("Acquitted") Page 11 of 20 FIR No. 82/11; U/s 394/397/201/34; PS Vijay Vihar 21.05.2014 In the case in hand, the weapon of offence i.e. knife has not been recovered from the possession of accused Ravi @ Gatha. There is no iota of evidence available on record in order to show that knife allegedly used by accused Ravi@ Gatha was a deadly weapon. PW4 Sh. Kanhiya (complainant) even failed to give any description of the knife alleged to have been used in the commission of offence in his entire deposition made by him during trial. He has also failed to name any particular accused who had used the knife in the commission of crime. In the absence thereof and due to non recovery of any knife in the present case, Court is of the view that prosecution has miserably failed to discharge its onus to prove its case in respect of offence u/s 397 IPC against accused Ravi @ Gatha. It is held accordingly.
So far as offence u/s 394/34 IPC charged against both the accused is concerned, there are various loop holes in the prosecution story, which could not be plugged by the prosecution witnesses examined during trial. There are following material contradictions appearing in the testimonies of prosecution witnesses which create reasonable doubt in favour of accused persons.
(i). Firstly, the incident is claimed to have taken place at about 7.15 pm on 12.03.2011 on the road near DDA Park, Village Rithala. After commission of incident, PW4 Sh. Kanhiya allegedly went to nearby police picket, where he met PW7 HC Shailender who removed him to BSA Hospital and got him admitted there. However, MLC Ex.PW3/A of PW4 Sh. Kanhiya shows otherwise. The perusal of said MLC reveals that the time of arrival of PW4 State V/s Ravi @ Gatha etc. ("Acquitted") Page 12 of 20 FIR No. 82/11; U/s 394/397/201/34; PS Vijay Vihar 21.05.2014 Sh. Kanhiya in BSA Hospital as mentioned in the relevant column is, 7.00 pm. It is a matter of common knowledge that it would have taken some time in commission of incident of robbery against the complainant (PW4). Further, it would have taken some more time for the complainant in going to the nearby police picket, narrating the incident before PW7 HC Shailender and in removal of injured to the hospital. That being so, the time of arrival of PW4 Sh. Kanhiya in BSA Hospital ought to have been somewhere around 8 pm or so. The time of arrival of PW4 Sh. Kanhiya in BSA Hospital as mentioned in MLC Ex.PW3/A, is prior to the time of occurrence of the incident in question as per the case of prosecution.
(ii).Secondly, in DD No. 76B Ex.PW1/A, the time of incident mentioned is 8.10 pm, which is again contrary to the case of prosecution as well as the deposition made by PW4 Sh. Kanhiya during trial.
(iii).Thirdly, PW4 Sh. Kanhiya testified during cross examination that he did not disclose to the police about exact height of persons who had robbed him. However, the said part of his testimony is contrary to his police statement Ex.PW1/B wherein it is recorded that height of assailants was 5 feet 7 inches. PW4 was confronted with the relevant portion of his police statement Ex.PW1/B but he could not give any explanation in this regard.
(iv).Fourthly, mobile phone Ex.P1 was found having IMEI no. 352981038416629 and 352981038416637 mentioned on its back cover when produced in the testimony of PW4 Sh. Kanhiya. As contrary thereto, PW9 SI Ramesh Thakur, who is noneelse but IO of this case, deposed during cross State V/s Ravi @ Gatha etc. ("Acquitted") Page 13 of 20 FIR No. 82/11; U/s 394/397/201/34; PS Vijay Vihar 21.05.2014 examination that mobile phone recovered at the instance of Ravi @ Gatha, was not having any IMEI number since it was a Chinese mobile.
(v).Fifthly, PW4 Sh. Kanhiya deposed during cross examination that police officials used to bring some persons for identification by him when he was admitted in the hospital but he did not identify any of them as they were not the robbers. However, said part of his deposition is totally different from the case of prosecution as mentioned in the chargesheet. It was nowhere case of prosecution that PW4 Sh. Kanhiya was shown some persons for their identification while he was admitted in hospital during the course of investigation of this case. Rather, the case of prosecution had been that both the accused refused to participate in judicial TIP held on 23.09.2011. The said conduct of investigating agency in getting judicial TIP of both the accused conducted before the Court definitely means that it was the stand of investigating agency that said accused had not been previously shown to the witness through whom identification is to be carried out. However, the cat came out of the bag during testimony of PW4 Sh. Kanhiya wherein he himself stated during chief examination that he had visited the police station on receipt of phone call to identify the persons who had robbed him and in the police station itself, he had identified both the persons to be the persons who had robbed him. In this back drop, Court is entirely in agreement with the submission made by ld. defence counsels that no adverse inference can be drawn against accused persons for their refusal to participate in TIP proceeding Ex.PW9/D as TIP proceeding itself shows that both the accused State V/s Ravi @ Gatha etc. ("Acquitted") Page 14 of 20 FIR No. 82/11; U/s 394/397/201/34; PS Vijay Vihar 21.05.2014 had refused to participate in TIP on this very plea that they were shown to witness by the police.
In the aforesaid facts and circumstances, the identification of both the accused by PW4 Sh. Kanhiya during trial, becomes doubtful and is of no relevance in view of the law laid down by our own High Court and by the Apex Court in both the authorities relied by ld. defence counsels. In the decision rendered by Hon'ble High Court of Delhi reported at 1988 Cri.L.J. 780, it has been observed as under:
(para 16) "To our mind, the crucial question is the quality of evidence in this regard. If the evidence is poor the court has no option but to direct acquittal in the absence of supporting evidence. The courts have always stressed the need for cautious approach in this regard. The courts have to guard against the mistaken identification and have also to exclude the possibilities of the identification being based on merely visual impressions of the witness. It is in these circumstances that the dock identification without any supporting evidence has been considered as a suspect. There can, however, be no rigid rule as an accused person may refuse to be subjected to test identification parade for even invalid reason. It will, therefore, always depend on the quality of evidence in the circumstances of each case. All that is thus required is a cautious approach in which the judicial maturity, strict adherence to the rule of prudence, judicial and pragmatic approach to evidence together with experience in human affairs are the factors which do guide the court in determining the weight of such evidence".
(para 18) "..............The only description of the accused he gave is that one was short statured and the other was a thin State V/s Ravi @ Gatha etc. ("Acquitted") Page 15 of 20 FIR No. 82/11; U/s 394/397/201/34; PS Vijay Vihar 21.05.2014 boy. This is no description but are only his impressions. It can hardly be said that he could identify the accused after four long years on the basis of this description under the circumstances of this case. The evidence in respect of identification and of these two eye witnesses can hardly be said to conclusively establish the identity of the culprits as the persons connected with the commission of this crime. With so many disabilities of PW12 and with the situation in which PW54 was placed and in that horrifying atmosphere during evening time within such a short time, it is not at all possible for any eyewitness to identify unless the witness had an opportunity to see the accused on some earlier occasion. If these two eye witnesses had really observed them they would have given some sort of broad description at the time when they made their statements to the police. That alone could inspire faith in their identification of the accused. In this case dock identification has further lost credibility due to the identification by the witnesses after such a long time. In our view no reasonable man can rely and act on such identification as it would amount to taking a great risk unless this identification is corroborated by some supporting evidence. It is not uncommon that due to mistaken identification mishaps have taken place and innocent persons have been convicted...............".
In the case in hand, incident had taken place on 12.03.2011. Both accused were arrested on 08.09.2011. PW4 entered into witness box on 21.03.2013 i.e. after gap of about two years from the date of incident. In this backdrop, the belated identification of accused by the complainant (PW4) has lost credibility as it was not possible for any reasonable man to identify the culprit after lapse of two years in the absence of independent corroboration by some supportive evidence.State V/s Ravi @ Gatha etc. ("Acquitted") Page 16 of 20
FIR No. 82/11; U/s 394/397/201/34; PS Vijay Vihar 21.05.2014 Besides above, there are certain questions which remained unanswered during trial. The prosecution has no answer as to why the TIP of mobile phone Ex.P1 was not conducted during the course of investigation. As per the admitted case of prosecution, PW4 Sh. Kanhiya was not present at the time of alleged recovery of mobile phone from the jhuggi of accused Ravi @ Gatha. Since the complainant was not associated at the time of recovery of said mobile phone, it was incumbent on the part of investigating agency to get the TIP of said mobile phone conducted through complainant, which has not been done in this case. The prosecution has also failed to explain as to why no effort was made by Investigating Officer to collect the relevant bill/cash memo regarding purchase of mobile phone Ex.P1 in order to show that complainant was actually having any such mobile phone with him. In this regard, it will be useful to refer the relevant portion of chief examination of PW4 Sh. Kanhiya wherein he has claimed that said mobile phone was issued in the name of friend of his younger brother as also that mobile handset was borrowed by him from his friend Monu. However, Investigating Officer did not take any pain either to examine said Sh. Monu during investigation or to produce him during trial. It is also quite unbelievable that PW4 Sh. Kanhiya although obtained SIM number in the name of friend of his younger brother but he did not remember his name.
Be that as it may, it was again duty of the Investigating Officer to collect relevant documents including Customer Application Form (CAF) from service provider in order to verify the claim of complainant namely Sh. State V/s Ravi @ Gatha etc. ("Acquitted") Page 17 of 20 FIR No. 82/11; U/s 394/397/201/34; PS Vijay Vihar 21.05.2014 Kanhiya (PW4) that he was actually having mobile phone containing SIM number 9953021393 as also to examine friend of his younger brother to prove that said SIM number was actually being used by the complainant. Had the relevant call details, documents including CAF and copies of documents on the basis of which SIM number was issued, been collected by the Investigating Officer, it would have clarified the whole things.
The accused persons are shown to have been arrested after a period of six months from the date of incident. The mobile phone Ex.P1 is also alleged to have been recovered from the jhuggi of accused Ravi @ Gatha after a period of six months from the date of incident. There is considerable force in the argument of ld. defence counsel that it is quite unbelievable that any offender would keep the robbed mobile phone in his own jhuggi for a period of six months after the date of incident so as to afford an evidence against him to secure his conviction in the case.
Moreover, possibility of said mobile phone having been falsely planted against the accused also cannot be ruled out in the facts and circumstances of this case. It has come on record during the testimony of prosecution evidence that mobile phone similar to mobile phone Ex.P1, is easily available in the open market. No document including invoice/bill/cash memo of mobile phone Ex.P1 was seized during the course of investigation or even produced during trial. There is no cogent evidence to prove that mobile phone Ex.P1 was actually being used by the complainant namely Sh. Kanhiya (PW4) prior to the incident in question.
State V/s Ravi @ Gatha etc. ("Acquitted") Page 18 of 20 FIR No. 82/11; U/s 394/397/201/34; PS Vijay Vihar 21.05.2014 Even otherwise, no independent public person was joined at the time of recovery of mobile phone from the jhuggi of accused Ravi @ Gatha despite the fact that it has come on record that there were residential jhuggis situated near the jhuggi of accused Ravi @ Gatha. Although, PW9 SI Ramesh Thakur (IO) admitted during cross examination that the place of recovery of mobile phone was a public thorough fare but claimed that it was raining heavily at that time but said part of his statement does not appeal to reasoning as the incident had taken place in the month of March and it is a matter of common knowledge that there is usually no rain in the month of March. Moreover, it was not difficult for IO SI Ramesh Thakur (PW9) to call any resident from nearby jhuggi to witness the recovery of mobile phone at the instance of accused Ravi @ Gatha. All these facts and circumstances also create reasonable doubt on the recovery of mobile phone Ex.P1 from the jhuggi of accused Ravi @ Gatha. It is well settled law that whenever two views are possible on the basis of evidence available on record, the view favouring the accused, should be adopted by the Court. {Reliance placed upon 1992 (2) Crimes 870 (HP)} Although ld. Additional PP for State argued that defence raised by accused during cross examination of prosecution witnesses as well as in their statements u/s 313 Cr.P.C., has not been proved due to which case of prosecution should be deemed to have been proved. However, there is no merit in the said argument. It is well settled law that the entire burden to State V/s Ravi @ Gatha etc. ("Acquitted") Page 19 of 20 FIR No. 82/11; U/s 394/397/201/34; PS Vijay Vihar 21.05.2014 prove its case lies upon the prosecution and mere weakness in the defence of accused does not supply any missing link in the chain of circumstances leading to be guilt of an accused.
In the light of aforesaid discussion, Court is of the view that both the accused are entitled to benefit of doubt. Consequently, both the accused namely Ravi @ Gatha and accused Ravi S/o Jogi Ram are hereby acquitted of the charges levelled against them by giving them benefit of doubt. However, both the said accused are directed to furnish personal bonds in the sum of Rs. 20,000/ each with one surety each in the like amount in terms of Section 437A Cr.P.C. They are directed to appear before higher Court as and when such Court issues any notice of appeal or petition filed against the judgment passed by the Court.
File be consigned to record room.
Announced in open Court today
dt. 21.05.2014 (Vidya Prakash)
Additional Sessions Judge04
North District, Rohini Courts,
Delhi: 21.05.2014
State V/s Ravi @ Gatha etc. ("Acquitted") Page 20 of 20