Delhi District Court
State vs . Rupesh Etc. on 22 December, 2012
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 36/11)
Unique ID case No. 02404R031852011
State Vs. Rupesh Etc.
FIR No. : 90/11
U/s : 392/397/411/34 IPC
P.S. : Swaroop Nagar
State Vs. 1 Rupesh
S/o Sh. Mahender Gupta,
R/o House No. B 3371, Gali No.88,
Sant Nagar, Burari, Delhi.
2 Rakesh
S/o Sh. Puran Chand,
R/o House No.5126, Gali No.114,
Sant Nagar, Burari, Delhi.
Date of institution of case 08.08.2011
Date on which, judgment has been reserved 22.12.2012
Date of pronouncement of judgment : 22.12.2012
JUDGMENT:
1 The investigations in the present case commenced with receipt of information at P.S. Swaroop Nagar that one person had been robbed of Rs.2,500/ on S.C. No. 36/11 : State vs. Rupesh Etc. : Page 1 of 16 knife point by two persons, who had come on motorcycle No. DL 8S AN 4498 at Gali No.9E, Block Ibrahimpur Extension. The said information was reduced to writing vide DD No.21A dated 21.06.2012 and was handed over to PW9 SI Jagdeep and PW7 Ct. Namdev for investigations, who proceeded to the place of occurrence at Ibrahimpur Mod and met PW1 complainant Kamal Kishore, who deposed that he was an auto driver by profession and was residing in rented premises in DCM Colony, Delhi84. On the day of incident i.e. 19.06.2011, he dropped passengers at bus stand and was going home and when he reached near Ibrahimpur Mod at about 11:00 PM, one motorcycle came from behind and over took his auto No. DL 1R K 7166 and made him stop his TSR. The two persons riding the said motorcycle parked it and came to complainant. One of the persons took out a knife from his pocket and threatened him to handover whatever he was carrying with him at the point of the said knife. When complainant refused, the other boy took out complainant's purse from the backside pocket and thereafter offender went away towards Pushta. Complainant stated that his purse was of black colour having Rs.2,500/ in denomination of Rs.100/ currency notes, and it also contained his driving licence (original) and copy of challan dated 07.06.2011. He also stated that he could identify both the boys, if show to him, and that he had noted the number of their motorcycle while they were running away. He gave the number of motorcycle as DL 8S AN 4498 and said that it was a black colored Hero Honda motorcycle. He prayed that action be taken against the offenders.
On the basis of said complaint, case FIR Ex.PW3/A was registered against the accused persons at P.S. Swaroop Nagar. During the course of investigations, owner of motorcycle No. DL 8S AN 4498 was traced out. The said owner i.e. PW2 Sh. S.C. No. 36/11 : State vs. Rupesh Etc. : Page 2 of 16 Praveen Kumar informed the IO that he had sold the motorcycle bearing No. DL 8S AN 4498 to his employee Rakesh s/o Sh. Puran Chand, r/o 5126, Gali No.114, Sant Nagar, Burari, Delhi, about 2 / 3 months ago. Upon receiving this information, accused Rakesh was traced out and was arrested in the case and during his interrogation, accused Rakesh disclosed about having robbed complainant, with his friend/accused Rupesh, on the knife point on the day of incident. He also stated that on that day he was driving the motorcycle and had pointed out knife at the complainant and that out of the robbed amount, he had kept Rs.1,000/ while remaining Rs.1500/ and purse of the complainant were kept with accused Rupesh. Thereafter accused Rupesh was also arrested and complainant's purse containing driving licence, traffic challan and Rs.500/ (in denomination of five Rs.100/ notes) were stated to have been recovered from his possession. The case property was put up for TIP and was identified by the complainant. The accused persons refused for TIP. The brother of accused Rakesh namely Guddu was also joined as witness in the investigations wherein he stated that the motorcycle in question was in use of accused Rakesh. After completing investigations, charge sheet was prepared and filed in the court for trial.
2 Upon committal of this case to the court of Sessions, charges for the offence under Sections 392/397/411/34 IPC were framed against the accused persons Rupesh and Rakesh. However, accused persons pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence. 3 The prosecution has examined nine witnesses in support of its case. S.C. No. 36/11 : State vs. Rupesh Etc. : Page 3 of 16 4 PW1 Sh. Kamal Kishore is the complainant / victim in the present case. He deposed that he was an auto driver by profession and that on 19.06.2011 when he was returning house with his autorickshaw and reached at Ibrahimpur Mod at about 11:00 PM, one motorcycle on which there were two persons came from behind, overtook autorickshaw of PW1 and gave a signal to stop. The PW1 further deposed that he stopped his autorickshaw and that thereafter one person came to PW1 and asked him for Kalkaji but before PW1 could reply, said person took out a knife and threatened PW1 with the said knife and asked him to hand over whatever he was having. In the meantime, another person also came to PW1 after stationing his motorcycle and took out purse of PW1 from the back pocket of his wearing pant and thereafter both person ran away from there on their motorcycle. The PW1 stated that his purse contained about Rs.2,500/, his driving licence and one challan and that after the incident, PW1 went to his house and narrated all the facts to his friends and family members and also gave a call at 100 number through mobile phone of Raj Kumar, friend of PW1. The PW1 further deposed that he was called to PP Ibrahimpur and from there he along with police officials went to the spot and that his statement Ex.PW1/A was recorded by the Police and he also showed the place of occurrence to Police and a site plan of said place was prepared at instance of PW1.
5 The PW1 then deposed about TIP proceedings dated 25.06.2011, when he identified his purse before learned MM at Rohini Courts, Delhi. He also deposed about his visit to Rohini Jail on 27.06.2011 for identification of accused persons and said that S.C. No. 36/11 : State vs. Rupesh Etc. : Page 4 of 16 he was told that accused persons had refused to take part in TIP proceedings. The PW1 identified the case property, which was produced before the Court sealed with the seal of BS, and his black colored purse was exhibited as Ex.P1, five currency notes of denomination of Rs.100/ each were exhibited as Ex.P2, the driving licence and challan slip were exhibited as Ex.P3 and Ex.P4 respectively.
6 Though PW1 supported the prosecution case as regards the incident and also identified the case property, he failed to support the prosecution case as regards the identity of the accused and accordingly, he was crossexamined by learned Additional PP, to elicit these facts from him. During his crossexamination by learned Additional PP, the PW1 termed it correct that he had met local Police at the spot and his statement was also recorded at the spot and that he had noted the number of motorcycle on which offenders had come and the said motorcycle was of make 'Hero Honda' and had registration No. DL 8S AN 4498. The PW1, however, denied having identified accused Rakesh and Rupesh during his visit to Rohini Courts on 19.07.2011 or having given statement Mark "X" u/s. 161 CrPC to the Police in this regard or having stated to the Police in Mark "X" that accused Rakesh was the same person, who had shown knife to PW1 or that accused Rupes was the same person, who had taken out the purse of PW1.
7 The PW1 was specifically pointed out both the accused persons in the Court but denied that the accused namely Rakesh and Rupesh were the same persons, who had robbed him on the day of the incident.
S.C. No. 36/11 : State vs. Rupesh Etc. : Page 5 of 16 8 During his crossexamination by learned defence counsels, PW1 stated that he had not raised any alarm at the time of the incident. He termed it correct that he had gone to his house after the incident and did not go back to the place of incident with the Police on that day and that no writing work was done by the Police at the place of incident in presence of PW1 and that at the time of incident, it was dark due to night hours.
9 PW2 Sh. Praveen Kumar is the registered owner of Hero Honda motorcycle bearing registration No. DL 8S AN 4498, which is alleged to have been used in the incident. The PW2 deposed that he was running a hardware shop wherein accused Rakesh was working as a helper and that on 26.04.2011 he sold his motorcycle bearing registration No. DL 8S AN 4498 to accused Rakesh and his brother Guddu for a sum of Rs.20,000/ on execution of undertakingcumagreement of sale. He proved photocopy of said undertakingcumagreement as Ex.PW2/A. During his cross examination by learned defence counsels, PW2 deposed that accused Rakesh had been working with him since 78 years and that he used to come for work on foot and did not know how to drive a motorcycle at that time.
10 PW5 Guddu is the brother of accused Rakesh and he corroborated the testimony of PW2 Praveen Kumar regarding purchase of motorcycle bearing registration No. DL 8S AN 4498. He proved his thumb impression on Ex.PW2/A i.e. undertaking cum agreement for sale of motorcycle. The photocopy of Delivery receipt S.C. No. 36/11 : State vs. Rupesh Etc. : Page 6 of 16 was proved as Ex.PW5/A. He also deposed that later on the ownership of the motorcycle was transferred in his name and that motorcycle remained with him. This witness was declared hostile by learned Additional PP and was crossexamined at length. During his crossexamination by learned Additional PP, the PW5 denied having stated to the Police in his statement u/s.161 CrPC, that the motorcycle bearing registration No. DL 8S AN 4498 was being used by his brother Rakesh. He also denied having handed over photocopy of his Election ICard as well that of accused Rakesh to the Police even though he identified his signatures of Ex.PW5/B i.e. the seizure memo of the said Election ICard. The PW5 admitted that motorcycle bearing registration No. DL 8S AN 4498 had not been transferred in his name till 23.07.2011. 11 During his crossexamination on behalf of accused persons, PW5 deposed that no other person in his family knew how to drive the motorcycle. 12 PW8 Sh. Bhupender Kumar, learned MM, had conducted TIP proceedings in respect of the case property and the accused persons in the present case and deposed regarding the same. He proved the TIP proceedings in respect of purse of complainant, wherein complainant identified his purse, as Ex.PW8A to Ex.PW8/E. 13 He also proved the TIP proceedings, in which accused Rakesh and Rupesh had refused to participate, as Ex.PW8/F to Ex.PW8/G and Ex.PW8/H to Ex.PW8/J respectively.
S.C. No. 36/11 : State vs. Rupesh Etc. : Page 7 of 16 14 PW3 HC Rajinder Singh is the duty officer. He proved computerized copy of FIR as Ex.PW3/A and endorsement made by him on rukka as Ex.PW3/B respectively.
15 PW9 SI Jagdeep is the IO of the case. He deposed about the investigations carried out by him and the documents prepared by him during the course of investigations. He proved copy of DD No.21A as Ex.PW9/A, his signatures at point "B" on complaint Ex.PW1/A, rukka as Ex.PW9/B and site plan prepared by him at the instance of complainant as Ex.PW9/C. He further deposed that on 20.06.2011, he made inquiry from traffic helpline regarding ownership of motorcycle bearing registration No. DL 8S AN 4498 and came to know that the same was in the name of Praveen r/o House No.123/25, Main Market, Sant Nagar, Delhi and that when he visited said Praveen, he was told that the motorcycle had already been sold by him to his servant Rakesh 2 ½ - 3 months prior to the incident. The PW9 further deposed about apprehension of accused Rakesh and seizure of motorcycle bearing registration No. DL 8S AN 4498 at the instance of accused Rakesh vide memo Ex.PW4/B. He also proved the arrest memo, personal search memo and disclosure statement of accused Rakesh as Ex.PW4/A to Ex.PW4/C. The PW9 then deposed about apprehension of accused Rupesh and his arrest and personal search vide memos Ex.PW4/E and Ex.PW4/F. He also deposed about recording of disclosure statement of accused Rupesh vide memo Ex.PW4/G and recovery of purse containing Rs.500/ in denomination of Rs.100/, one driving licence and traffic challan at the instance of accused Rupesh and its seizure vide memo Ex.PW4/H. The pointing out memo of the place of incident, prepared at the S.C. No. 36/11 : State vs. Rupesh Etc. : Page 8 of 16 instance of accused persons was proved as Ex.PW4/I. The PW9 further deposed about the TIP proceedings in respect of the case property and the accused persons and also having joined Guddu, brother of accused Rakesh in investigations. He identified both the accused persons, the case property Ex.P1 to Ex.P4, which was already identified by the complainant was also identified by the PW9. The motorcycle bearing registration No. DL 8S AN 4498, alleged to have been used in commission of offence, was identified by PW9 as Ex.P5.
16 During his crossexamination, PW9 deposed that he had reached the place of incident at about 11:30 PM. He denied that complainant was not present at the spot when he reached there or that he had gone to the residence of the complainant from the place of incident. He further stated that he remained at the place of incident from 11:30 PM till 2:30 - 3:00 AM and that there was only one Khoka of tea shop at the place of incident and that all the writing work was done on the table outside the Khoka under the streetlight. From further crossexamination of PW9, it is brought out that he did not obtain any document from PCR officials regarding the case even though PCR officials had reached the spot prior to PW9 reaching there. Regarding the nature of work of accused Rakesh, PW9 stated that he was doing work of Peon / Waitor in the shop of Praveen Gupta, who was having a hardware shop. PW9 denied that complainant had never identified the accused persons or that he had falsely recorded the statement of complainant in this regard or that the accused had been falsely implicated in the case by him.
S.C. No. 36/11 : State vs. Rupesh Etc. : Page 9 of 16 17 PW4 Ct. Baljit Singh had joined investigations of the case with the IO and he proved his signatures on various memos wherein he had signed as witness and deposed about investigations carried out by IO in his present. 18 During his crossexamination PW4 stated that complainant had never given any statement in his presence to the IO and that he had gone to the place of the incident on 20.06.2011 for purposes of investigations along with the accused persons and that at that time complainant was not present and that complainant did not meet PW4. He also deposed that complainant was not present at the time of arrest of accused Rupesh and Rakesh. PW4 could not remember if Praveen, owner of motorcycle bearing registration No. DL 8S AN 4498, had taken name of Guddu as person to whom the motorcycle had been sold. During his further crossexamination, PW4 stated that he was not present with the IO when both the accused were produced in the Court and he could not state if complainant had met IO then. He also stated that both the accused had given their statements to the IO but he could not state if accused had told the IO as to who was driving the motorcycle in question at the time of incident or which of the accused was having knife at that time. PW4 could not tell which of the two accused had taken out purse of the complainant. He also stated that they had not met Guddu, younger brother of Rakesh, at the place of incident and that IO had not recorded statement of Guddu in his presence.
19 PW7 Ct. Namdev had gone to the spot with the IO on 20.06.2011 on S.C. No. 36/11 : State vs. Rupesh Etc. : Page 10 of 16 receipt of DD No.21A. He deposed that on reaching the spot i.e. Ibrahimpur, Burari Road, he and IO met one person, whose name he did not remember and went to house of said person situated at DCM Colony, E Block, Gali No.9 and that IO prepared Tehrir and handed it over to PW7 with directions to take it to PS and that PW7 took the Tehrir to PS at about 1:00 PM got the case FIR registered and returned back to spot with copy of FIR and rukka at about 2:30 PM. In response to leading question put to him by learned Additional PP, PW7 termed it correct that they had met complainant Kamal Kishore at the spot and his statement was recorded by the IO. During his cross examination, PW7 stated that an auto was standing at the spot but could not tell its number. He also could not state why IO had gone house of complainant though he had recorded statement of complainant at the spot. He denied that complainant had already gone to his house when IO reached there.
20 After recording of prosecution evidence, statements of both the accused persons u/s 313 Cr. P. C. were recorded. Both the accused persons stated that they had been falsely implicated in the present case. Accused Rupesh stated that he used to sell vegetables outside the shop of one Praveen and that on 20.06.2011 at about 11:00 PM, he and his friend Rakesh were standing outside shop of Praveen and that some Police officials came there and lifted them from there and took them to P.S. where they both were badly beaten and their signatures were forcibly obtained on some blank papers and that they were falsely implicated in the present case.
21 Accused Rakesh also took the same defence. He also stated that he neither S.C. No. 36/11 : State vs. Rupesh Etc. : Page 11 of 16 possessed any motorcycle nor did he know how to drive one and that he was only not having any driving licence.
22 Arguments have been put forward by Ld. Addl. PP for State and Ld. defence counsels for the accused persons.
23 Learned Additional PP has stated that prosecution has succeeded in proving its case against the accused persons beyond reasonable doubt and hence accused persons be held guilty of the charged offences.
24 On the other hand learned counsel for accused has contended that prosecution has failed to prove its case against the accused persons more so since the only witness connecting the accused persons with the offence i.e. the complainant has failed to identify the accused persons as the offenders responsible for robbing him on the day of the incident. It is further stated that recovery proceedings are tainted and the recovered articles have been planted upon the accused persons and for this reason no public persons were joined in the recovery proceedings. It is further contended that both the accused persons have been falsely implicated in the present case without any effort being made by the IO to nab the actual culprits and it is accordingly, prayed that accused persons be acquitted of the charged offences in the present case. 25 I have heard the arguments put forward by ld. Addl. PP and learned defence counsel for the accused persons and have carefully gone through the record of the case. I S.C. No. 36/11 : State vs. Rupesh Etc. : Page 12 of 16 have also carefully considered the evidence adduced by the prosecution in support of its case.
26 In the present case accused persons are alleged to have robbed complainant Kamal Kishore of his purse containing cash in sum of Rs.2500/, driving licence and other documents on 19.06.2011 at about 9:00 PM at Ibrahimpur Mod, Burari, Delhi. Further accused Rakesh is alleged to have used a deadly weapon namely a knife at the time of commission of the said robbery. The accused Rupesh is also stated to have got recovered the robbed property namely purse containing Rs.500/, driving licence and other documents on 20.06.2011 from his house. In order to prove its case prosecution has cited 10 witnesses out of which complainant Kamal Kishor is the star prosecution witness. He is the only witness, who could have identified accused persons as the offenders, who had robbed him on the day of incident and was examined as PW1. During his deposition before the Court though PW1 Kamal Kishor supported the prosecution case as regards the incident, he failed to identify both the accused persons as the offenders, who had robbed him on the day of incident. Both the accused were specifically pointed out to the complainant in the Court by learned Additional PP during his deposition in the Court despite which he stated that accused Rakesh and Rupesh were not the same persons, who had robbed him on the day of incident. Though complainant gave the number of motorcycle, on which the offenders had come, as No. DL 8S AN 4498 which later was traced to be belonging to PW2 Praveen, employer of accused Rakesh, who in turn had sold the said motorcycle to PW5 Guddu, younger brother of accused Rakesh, the prosecution could not establish that both the accused had S.C. No. 36/11 : State vs. Rupesh Etc. : Page 13 of 16 in fact used the said motorcycle in commission of the alleged offence. Firstly, accused Rakesh has taken a specific defence that he did not know how to drive a motorcycle and this fact has been reiterated by two prosecution witnesses themselves i.e. PW2 Praveen and PW5 Guddu. This coupled with the fact that complainant failed to identify accused Rakesh in the Court creates a doubt whether the motorcycle in question i.e. motorcycle bearing registration No. DL 8S AN 4498, was used in commission of offence and if so, is was the accused Rakesh, who was driving the same and that accused Rupesh was riding on it, along with accused Rakesh, and that complainant, who could not see the accused properly, could have actually noted the number of the motorcycle despite the fact that it was late hours of night and, therefore, drak as he has admitted during his crossexamination. The fact that complainant has given number of a motorcycle alleged to have been used by his assailants, which was later found to be belonging to brother of accused Rakesh, who had purchased the same from PW2 Praveen, employer of accused Rakesh by itself does not established identity of the accused persons as the robbers, who had robbed the complainant on 19.06.2011. Thus offences u/s.392/34 IPC and u/s.397 IPC do not stand proved against the accused persons.
27 Coming to allegations of recovery of robbed articles from possession of accused Rupesh, as per case of the prosecution, the recovery of said articles was effected from the house of accused Rupesh, to which the Police party was led by accused Rakesh. However, nothing has been placed on record by the IO to establish that the said house / room was in exclusive possession of accused Rupesh. No independent person/witness from locality, in which house of accused Rupesh was situated, has been S.C. No. 36/11 : State vs. Rupesh Etc. : Page 14 of 16 joined in investigations during the recovery proceedings. There is further no explanation why the complainant was not asked to join the recovery proceedings. The PW4 Ct. Baljeet, who has joined the said recovery proceedings with the IO, stated in his examination in chief that accused Rupesh got recovered one black colored purse from under the mattress of the bed in his room. However, during his crossexamination, he stated that he could not tell which of the two accused had taken out the said purse. It is noteworthy that the purse of the complainant by itself did not have any distinctive mark on it. Similarly, the currency notes kept therein did not have any distinctive mark save and except that they were in denomination of Rs.100/ each. The purse was connected with the complainant on the basis of one driving licence and challan receipt kept therein. However, when TIP proceedings Ex.PW8/A to Ex.PW8/E are perused, nothing is mentioned therein about contents of purse Ex.P1. Though the purse Ex.P1 is stated to have been sealed at the spot by the IO, after alleged recovery from accused Rupesh, the case property as well as the seal continued to remain in possession of IO and thus the question of tampering with the case property cannot be ruled out especially when no public witness was joined in the recovery proceedings. 28 Thus, in view of the above discussion and observations and having regard to the fact and circumstances of the present case, I am of the considered opinion that the prosecution has failed to prove the guilt of the accused persons on record, beyond the reasonable doubts. Accordingly, I acquit accused Rupesh and Rakesh of the charged offences, giving them the benefit of doubt.
S.C. No. 36/11 : State vs. Rupesh Etc. : Page 15 of 16
File be consigned to the Record Room.
(Announced in the open Court ) (Illa Rawat)
(Today on 22.12.2012) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
S.C. No. 36/11 : State vs. Rupesh Etc. : Page 16 of 16
FIR No. 90/11
P.S. Swaroop Nagar
State Vs. Rupesh Etc.
22.12.2012
Present : Ld. Additional PP for the State.
Both accused on bail with counsel Sh. A.V. Shukla.
Learned Additional PP has addressed arguments. Learned counsel for
accused persons had already addressed arguments on 21.12.2012.
Be listed for orders at 3:00 PM today itself.
ASJ (NorthWest)01
Rohini/Delhi
22.12.2012
At 3:30 PM
Present : As before.
Vide separate judgment, announced today in the open Court, both the accused persons have been acquitted of the charged offence.
Both the accused request that their previously furnished bail bonds may be accepted in compliance of Section 437A Cr.PC. Request allowed. Accordingly, previous bail bonds of both the accused persons are extended for a period of six months from today in terms of Section 437A CrPC.
File be consigned to Record Room.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 22.12.2012 S.C. No. 36/11 : State vs. Rupesh Etc. : Page 17 of 16