Delhi District Court
Criminal Case/30/2010 on 10 October, 2013
1
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, SOUTH EAST DELHI, SAKET
State v. Rakesh & Ors.
FIR No. 219/10
PS S L Colony
U/s 392/411/34 IPC
JUDGMENT
C C No. : 30/3/11
Date of Institution : 23.09.2010
Date of Commission of Offence : 23.06.2010
Name of the complainant : Baljeet
S/o Hari Chand
R/o Village Ghaitawas, District
Gurgaon, Police Station Farak Nagar
Haryana
Name & address of the accused : A-1 Rakesh
S/o Mukesh
R/o H. NO. 16/B, Tulsi ka Makan
Village Nangli Razapur
New Delhi
A-2 Moin @ Mannu
S/o Kareem
12/48, DDA Flats
Nizammuddin, New Delhi
A-3 Sharafat
S/o Kalu
R/o Kasba Chhaprali Tehsil Barat
District Bagpat, UP.
Offence complained of : U/s 392/411/34 IPC
State v. Rakesh & Ors. U/s 392/411/34 IPC
FIR No. 219/10, PS Sun Light Colony
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Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of reserve for judgment : 03.10.2013
Date of announcing of judgment : 10.10.2013
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall dispose of the present case u/s 392/411/34 IPC.
2. Briefly stated story of the prosecution is that on 23.06.2010 at about 12.30 am at ring road, Sarai Kale Khan, the complainant was driving one vehicle Mahindra Logan bearing no. DL1N 3066. At around 12.30 am, he got down at Ring Road Sarai Kale Khan for Urinal. He had left the key in the ignition of the car. In the meanwhile, 3-4 boys came and took away his vehicle. He ran after the vehicle but could not stop them. His mobile and purse containing Rs. 1500/- and DL etc was also kept in the said vehicle. The statement of the complainant was recorded by the IO and the present FIR was lodged under Section 379 IPC. Investigation was carried on further. In the meanwhile, the Manager of the Car Rental Service, Sh. Yusuf Khan came at the PS and stated that the complainant Baljeet had given wrong facts to the police as he was in a frightened state. He stated State v. Rakesh & Ors. U/s 392/411/34 IPC FIR No. 219/10, PS Sun Light Colony 3 that the correct fact was that the accused persons had stopped the vehicle while the complainant was chasing the car and caught hold of the complainant. They had forcibly confined him in the car and later on dropped him in bushes near IP Park. Section 342/392 IPC were consequently added in the FIR. On 25.06.2010, on secret information accused Rakesh was arrested who disclosed that he along with three persons Moin, Sharafat and Bharat had committed robbery on the said date. The accused Moin was apprehended by UP Police when he was trying to sell the above said vehicle at Meerut. The car was seized by police staff of PS Lisari Gate, Meerut UP in FIR No. 293/10 under Section 41.1/102 Cr.P.C and Section 411/414 IPC. The car was seized by the IO. The accused Sharafat was arrested on 04.07.2010. The accused Rakesh and Sharafat refused to join the TIP proceedings. However, the accused Moin agreed to join the TIP proceedings and was correctly identified by the complainant.and thus are alleged to have committed an offence under Section 379/411 IPC. After completing the formalities, investigation was carried out.
3. Charge sheet was filed against the accused in the court. Documents were supplied to the accused and thereafter charge under Section 392/411/34 State v. Rakesh & Ors. U/s 392/411/34 IPC FIR No. 219/10, PS Sun Light Colony 4 IPC was framed against them vide order dated 14.12.2010 to which they pleaded not guilty and claimed trial.
4. In order to prove the charge against the accused, the prosecution examined eleven witnesses namely (1) Baljeet (2) HC Roop Singh (3) SI Rambir (4) Yusuf Khan (5) ASI Bhagirath (6) Ct. Hari Kumar (7) HC Meena Arora (8) HC Amit Kumar (9) Ct. Arun (10) Sh. Munish Markan, Ld. ACJ (11) SI Ram Manohar.
5. PW-1 Baljeet, the complainant, has deposed that in the year 2010 he was working in Akbar Travels, Domestic Airport, New Delhi as a driver. On 23.06.2010 at about 10.40 pm he had dropped the passengers at Kaushambi, Ghaziabad from Logan car bearing no. DL1N 3066. While returning from Ghaziabad and going towards Airport at about 12.00-12.30 am, he stopped his car at some distance ahead of Sarai Kale Khan bus stand and got down from the car for toilet. The key was in the car. 4 boys came there and took the car away. He shouted and and raised alarm and chased them. He deposed that the car stopped at some distance of Sarai Kale Khan and they dragged the witness into the car and pushed him under the back seat. They beat him up and snatched his mobile phone, purse containing Rs.1500/-, and driving license. They tied his legs and State v. Rakesh & Ors. U/s 392/411/34 IPC FIR No. 219/10, PS Sun Light Colony 5 hands and thew him in the bushes near ITO. He got his legs and hands free with the help of labour and some body called the police and police came there. He narrated the matter to the police. His statement is Ex. PW1/A. Witness identified all the three accused persons in the court. He deposed that the site plan was prepared by the IO at his instance.
6. In the cross examination conducted by Ld. Counsel for accused Rakesh and Sharafat, witness stated that the distance between Sarai Kale Khan and the spot is approximately half Km. He stated that first he called the police on 100 number at about 1.00 am - 1.30 am. He deposed that he had called the police at 100 number from the mobile phone of police person on patrolling duty as they had met him near police headquarter. He deposed that after calling the police, police persons on patrolling duty guided him and he reached the PCR van which was parked near the police headquarter. From there, gypsy took him to the police station. In the police station, his statement was again recorded. Witness further stated that no accused was arrested in his presence but he identified them in PS Sarai Kale Khan at PS Sun Light Colony. He further stated that police had called him for identifying the accused persons on regular basis. After 15 days of the incident, police arrested the right persons and he identified State v. Rakesh & Ors. U/s 392/411/34 IPC FIR No. 219/10, PS Sun Light Colony 6 them. He stated that at the first instance, he had identified the accused in the police station and thereafter in Tihar Jail.
7. In the cross examination conducted by Ld. Counsel for accused Moin, witness stated that his statement was recorded by the police person sitting in the gypsy near headquarter. Then two other gypsy came and took him to PS Sun Light Colony. They had recorded his statement. Thereafter his statement was also recorded at Sarai Kale Khan. He stated that he had told the police every time that he was thrown by the accused near ITO after tying his hand and feet. Witness deposed that his legs were tied by his own shoe laces. He told the same to the police persons.
8. PW-2 HC Roop Singh deposed that in the intervening night of 22/23.06.2010 he was posted at PS Sun Light Colony. He deposed that he had written the DD No. 29A and proved the same as Ex. PW2/A.
9. PW-3 SI Ram Bir deposed that on 23.06.2010 he was posted at PS Sun Light colony. Witness deposed that on receipt of DD No. 29A he along with Ct. Varun reached at the spot i.e Sarai Kale Khan where complainant met them. He recorded his statement Ex. PW1/A. He proved his endorsement on rukka vide memo Ex. PW3/A. He proved the FIR as Ex. PW3/B. He inspected the site and prepared the site plan at the instance of the State v. Rakesh & Ors. U/s 392/411/34 IPC FIR No. 219/10, PS Sun Light Colony 7 complainant which is Ex. PW3/C. Witness deposed that on 24.06.2010 he collected the photocopy of ownership proof of vehicle bearing no. DL1N 3066 which was produced by Rahul Ganesh which is Ex. PW3/D. Witness deposed that thereafter investigation was handed over to ICPP Sarai Kale Khan. This witness was not cross examined by the accused persons.
10.PW-4 Yusuf Khan deposed that in the intervening night of 22/23.06.2010 his driver Baljeet had called him and told him that some one had robbed his car bearing no. DL1N 3066 from Sarai Kale Khan. He directed the driver to go to police station and register the FIR . On the next date i.e 12.00 Noon, he called his driver Baljeet to his office and asked him about the incident. He told him that he had not got down from the car but he was picking up the passengers from the road side and the accused persons sat in the car as passengers. On the way they had shown weapon to him and forcibly taken away the car and mobile phone and his wallet. He further deposed that on 24.06.2010 IO ASI Bhagirath had called him at the police station and he went to the Police station and informed the IO that his driver had wrongly mentioned the fact that he got down from the car for toilet and robbery had taken place. He disclosed to the IO the true facts that his State v. Rakesh & Ors. U/s 392/411/34 IPC FIR No. 219/10, PS Sun Light Colony 8 driver had picked up the passengers who had robbed him. He further deposed that on 28.06.2010 information regarding recovery of his vehicle from Meerut was given to him. Subsequently, he along with IO went to Meerut where he identified the vehicle. He got the vehicle released on superdari vide superdarinama Ex. PW4/A.
11.During cross examination, he deposed that on the date of incident he was out of Delhi and was informed by a person namely Rahul Ganesh about the incident and not from Baljeet. He called the driver Baljeet to his office on 24.06.2010. He observed swelling on the face and black spot below the eyes of Baljeet who told him that near the ITO, the accused persons had thrown him out of the car. He deposed that Baljeet had come to his office at about 9.30 am and they reached the police station at 12.30 pm and told about the misleadings facts of Baljeet. IO recorded his statement.
12.PW-5 ASI Bhagirath deposed that on 24.06.2010 he was posted at police post Sarai Kale Khan as ASI. On that day, the present case was marked to him for further investigation. During investigation, he collected the information from secret informer regarding robbed car and called the owner of the car and the complainant at police post Sarai Kale Khan. Yusuf Khan, Manager of the company told the IO the true facts of the case that State v. Rakesh & Ors. U/s 392/411/34 IPC FIR No. 219/10, PS Sun Light Colony 9 the driver was picking up the passengers who had robbed him and thrown him out of the car after snatching his mobile phone and purse. Witness had recorded his statement. Witness also recorded the supplementary statement of driver Baljeet in which he also informed that he had wrongly mentioned the fact that he had got down from the car for urinal and the robbery was committed as he got afraid. Driver told the true fact to the witness that he was picking the passengers from Sarai Kale Khan bus stand who had robbed him near the ITO and thrown him from the car after snatching his mobile and purse. Witness deposed that on 25.06.2010 one secret informer informed him that one person involved in the robbery in the present case was standing at the bus depot Sarai Kale Khan. On that information, he along with Ct. Arun Kumar went to the bus stand Sarai Kale Khan and after pointing out of the secret informer they apprehended the accused Rakesh. Witness interrogated him in which he made disclosure that he was involved in the aforesaid robbery. Witness recorded his disclosure statement which is Ex. PW5/A. Thereafter, witness arrested the accused Rakesh and conducted his personal search vide memo Ex. PW5/B and Ex. PW5/D. Later on he was informed by Police Post Philkhari, PS Lisari Gate, Meerut, UP regarding the recovery of the robbed State v. Rakesh & Ors. U/s 392/411/34 IPC FIR No. 219/10, PS Sun Light Colony 10 vehicle. On that information on 28.06.2010, he along with Ct. Amit and Manager of the company Yusuf Khan went to Police Post Philkhari PS Lisari Gate, Meerut. He took the recovered car in his possession vide recovery memo Ex. PW5/D. Later on investigation was marked to SI Ram Manohar and he deposited the case file to MHC(M) PS Sun Light Colony. Witness identified the photographs of the car. This witness was not cross examined by the accused persons.
13.PW-6 Ct. Hari Kumar deposed that on 22.06.2010 he was posted as Duty Officer at PS Sun Light Colony. Witness deposed that on 23.06.2010 at about 3.10 am, one telephonic wireless message from control room regarding robbery of vehicle bearing no. DL1N 3066 at Sarai Kale Khan bus stand by six persons by showing pistol. He recorded the DD No. 35 Ex.PW6/A in this regard and report was handed over to PSI Ashwani for taking action .
14.PW-7 HC Meena Arora deposed that on 23.06.2010 he was posted as Duty Officer at PS Sun Light Colony. He proved the FIR as Ex. PW7/A and endorsement on rukka as Ex.PW7/B.
15.PW-8 HC Amit Kumar deposed that on 28.06.2010 he was posted at police post Sarai Kale Khan Police Station as constable. Witness deposed that on State v. Rakesh & Ors. U/s 392/411/34 IPC FIR No. 219/10, PS Sun Light Colony 11 that day the accused Rakesh was taken on PC remand from Patiala House Court. Thereafter, they returned back to the Police Post Sarai Kale Khan along with the accused. Complainant Baljeet met them and he identified the accused Rakesh with his associate who had robbed the complainant. Witness deposed that he along with IO, Manager of the company namely Yusuf Khan and accused persons went to the Meerut, PP Pilkhari PS Lisari. Witness deposed that IO had taken the possession of the car bearing no. DL1N 3006 and brought it to the PS Sun Light Colony. Witness further deposed that on 13.07.2010 accused Moin was taken on one day PC remand and he pointed out the place where he committed robbery. Witness had signed the seizure memo of the vehicle seized by the IO. Witness identified the accused Rakesh and Moin in the court and also identified the photographs of the vehicle
16..During cross examination, witness could not say the time when the complainant Baljeet had come to the police post. Witness deposed that the complainant was already seated in the PS prior to his reaching. Witness deposed that no public person was joined while the accused Moin was pointing out the place of occurrence.
17.PW-9 Ct. Arun deposed that on 24.06.2010 he was posted as constable at State v. Rakesh & Ors. U/s 392/411/34 IPC FIR No. 219/10, PS Sun Light Colony 12 police Post Sarai Kale Khan. Witness deposed that IO ASI Bhagirath had received secret information about the robbed car . Witness deposed that IO had prepared the raiding party including him and secret informer and reached at ISBT Sarai Kale Khan where the IO had arrested the accused Rakesh and conducted his personal search. IO recorded the disclosure statement of the accused Rakesh and on his disclosure statement accused Moin was arrested by the IO from Patiala House Court vide memo Ex. PW9/A. Witness deposed that on 04.07.2010 accused Sharafat had been arrested by SI Ram Manohor vide memo Ex. PW9/A and conducted his personal search vide memo Ex. PW9/C. Witness identified the accused persons in the court.
18.PW-10 Sh. Munish Markan, Ld. ACJ deposed that on 30.06.2010 he was acting as Metropolitan Magistrate at Patiala House Court. IO of the present case moved an application for conducting the TIP Proceedings of the accused before the concerned court of Sh. Naveen Arora, the then Ld. ACMM which marked to the witness for disposal as per law on the same date being Link MM. Witness deposed that the accused Moin was produced by the IO from JC from Meerut Jail in muffled face. The date of TIP was fixed as 01.07.2010. Thereafter, on 01.07.2010 witness went to State v. Rakesh & Ors. U/s 392/411/34 IPC FIR No. 219/10, PS Sun Light Colony 13 the Central Jail No. 4 for TIP. The IO SI Ram Manohar and the witness Baljeet met him outside the Jail and he asked them to wait outside the Jail. In the jail , the accused was produced from JC by Assistant Jail Superintendent Sh. Rohit Mann who identified the accused. He recorded the statement of Jail Superintendent. Thereafter, witness asked the Jail Superintendent to leave the room. When only the accused and the witness left in the room, he explained the accused Moin the meaning of TIP in vernacular and asked him whether he is willing to join the TIP . Accused expressed his willingness to join the TIP proceedings. Accordingly, the accused was directed to pick up 8-10 under-trials of his age and phsique. The accused picked up 10 under-trials whose name, father's name and signatures/ thumb impression were obtained by the witness. Thereafter, the accused and the undertrials were asked to stand in a line. Witness deposed that the door of the room was closed and all the necessary precautions for TIP were taken. The accused was asked if he has any cut or identification mark on his face or any revealing body part to which he replied in negative. The accused was given an option to stand at any place of his choice and also to change his cloths with any undertrial. The accused preferred to stand at serial no. 7 from his left to right. Thereafter, State v. Rakesh & Ors. U/s 392/411/34 IPC FIR No. 219/10, PS Sun Light Colony 14 the witness was called and asked to identify the accused and he correctly identified the accused. The application of the IO for conducting the TIP Proceedings is Ex. PW10/A. The TIP proceedings are Ex. PW10/B bearing the signature of witness at point A, B, C, D, E and F. Witness deposed that on 01.07.2010 IO moved the application for providing the copy of TIP Proceedings which was allowed on the same application vide order Ex. PW10/C.
19.PW-11 SI Ram Manohar deposed that on 29.06.2010 he was posted as ICPP Sarai Kale Khan PS Sun Light Colony. On that day, he received the investigation of case FIR No. 219/2010. On 30.06.2010 he had arrested the accused Moin after interrogating him in the court of Ld. ACMM, Patiala House Court and moved an application for conducting the TIP of the accused and for sending him to Judicial Custody. Witness also recorded the disclosure statement of the accused Moin vide Ex. PW11/A. On 01.07.2010 the TIP of the accused Moin was conducted by Ld. MM, Patiala House Court at Tihar Jail. During TIP Proceedings, complainant identified the accused Moin. He arrested the accused Sharafat from Hafiz Nagar Jhuggi, Pragati Maidan vide memo Ex. PW9/B and conducted his personal search vide memo Ex. PW9/C. Witness also recorded the disclosure State v. Rakesh & Ors. U/s 392/411/34 IPC FIR No. 219/10, PS Sun Light Colony 15 statement of the accused Sharafat which is Ex. PW11/B. Witness deposed that on 05.07.2010 accused Sharafat was produced in the court and he moved an application for conducting his TIP. However, the accused refused to undergo TIP and was sent to Judicial Custody on the application moved by him. Witness deposed that on 16.09.2010 while the accused Sharafat and Rakesh were produced in the court, the complainant Baljeet identified them as the accused who had robbed him of car no. DL1N 3066 Mahindra Logan. He recorded the statement of witnesses. He prepared the charge-sheet and filed in the concerned court. He identified the accused Rakesh, Moin and Sharafat in the court.
20.During cross examination, witness deposed that he had arrested the accused Sharafat on the basis of secret information. No recovery was effected from the accused Sharafat on the basis of his disclosure statement. He denied the suggestion that he did not know /aware of the case as the same has been transferred to him. He admitted that no public witness was made against accused Sharafat except the complainant and the superdar. During cross examination, witness deposed that the investigation of the present case was handed over to him on 29.06.2010 however, he did not remember the exact time.
State v. Rakesh & Ors. U/s 392/411/34 IPC FIR No. 219/10, PS Sun Light Colony 16
21.Accused Sharafat and Rakesh have admitted the genuineness of the TIP proceedings under Section 294 Cr.P.C.
22.The PE was closed and statement of accused persons were recorded wherein the accused persons pleaded innocence and stated that they were falsely implicated in this case. Accused did not lead DE.
23.Ld. Counsel for accused has deposed that the accused persons have been falsely implicated. He has submitted that there are two different version of the prosecution and there are various contradictions in the testimony of prosecution witnesses. He further submits that PW-1 has admitted in his testimony that he had seen the accused persons in the police station before identifying him in the Tihar Jail and hence the TIP proceedings of any of the accused cannot be read in evidence. He further submits that the prosecution has not examined any witness to the recovery of the car and hence the offence under Section 411 IPC is not proved.
24.On the other hand, Ld. APP has submitted that prosecution has proved its case beyond reasonable doubts.
25.I have heard the arguments addressed by the Ld APP for state and the Counsel for accused and carefully perused the documents on record.
State v. Rakesh & Ors. U/s 392/411/34 IPC FIR No. 219/10, PS Sun Light Colony 17
26.Let us first examine the relevant provisions of law for the purpose of this case. Robbery is defined under Section 390 IPC. It says that theft or extortion is robbery if :-
1. 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.
2. In order to commit the theft or in committing the theft, or carrying away or attempting to carry away property obtained by theft.
27.The essential ingredients to prove the offence under Section 411 IPC are:-
1. The property should be in possession of the accused.
2. Such property should be 'stolen property' i.e it should have been transfered by theft, extortion or robbery, or which has been criminally misappropriated.
3. The accused received the same knowing or having reason to believe the same to be stolen property.
28.In the case at hand, there are three versions of the same incident as put forth by prosecution. Firstly, the complainant Baljeet had stated before the police on 23.06.2010 that the accused persons had taken away the car when he had got down for toilet. He ran after the car but could not stop them. The Second version is given by the owner of the car Yusuf Khan (PW-3) to whom the driver Baljeet had narrated a different version that the State v. Rakesh & Ors. U/s 392/411/34 IPC FIR No. 219/10, PS Sun Light Colony 18 car was stopped by the accused persons when he was chasing it and the accused persons forcibly confined him in the car. However, in their testimony, both the complainant Baljeet and car owner Yusuf Khan had given a different version. While PW-1 has deposed that at the time of incident, he had got down from the car for toilet and in the meanwhile the accused persons had driven away his car. He ran after them raising alarm at the same time. At this, the accused persons stopped the car, dragged him inside the car and snatched away his mobile and purse. On the other hand PW-4 Yusuf Khan deposed that on the date of incident, his driver Baljeet had called him and told him about the incident of robbery saying that he had picked the robbers who had posed as passengers and sat in his car.
29.There are various contradictions in the testimony of sole eye witness i.e PW-1 and his complaint Ex. PW1/A. Also there are contradictions in the testimony of PW-1 and PW-4 regarding the manner in which the alleged incident of robbery had taken place. Not only this, the PW-1 has admitted that before identifying the accused Moin in Tihar Jail, the accused was shown to him him in the police station. It would not be out of place to produce the testimony of PW-1 verbatim at this stage, State v. Rakesh & Ors. U/s 392/411/34 IPC FIR No. 219/10, PS Sun Light Colony 19 "No accused person was arrested in my presence. After their arrest, I identified them in PS Sarai Kale Khan and in PS Sun Light Colony. They were arrested after almost 15 days after incident. Police had called me of and on for identifying the various accused persons on regular basis and after 15 days police arrested the right persons and I identified them. I had identified them in the Tihar Jail. At the first instance I identified them in the police station as the police person in order to sured me to right person".
30.Thus admittedly the accused persons were identified by the complainant in the PS itself, before TIP proceedings. Thus, TIP of the accused Moin cannot be read in evidence. Also, no adverse inference can be drawn from the fact that the remaining two accused Rakesh and Sharafat refused to get their TIP conducted as they had already been shown to the witness in the police station.
31.Also the prosecution has failed to produce and examine a single witness regarding the recovery of the stolen vehicle. No police officer from PS Lisari Gate from where the vehicle Mahindra Logan was recovered, has been even cited as a witness. This is a clear lapse on behalf of the State v. Rakesh & Ors. U/s 392/411/34 IPC FIR No. 219/10, PS Sun Light Colony 20 prosecution as it could not be proved that the vehicle was recovered at the instance of accused Moin.
32.It is the cardinal principle of criminal justice that the guilt of the accused is to be proved beyond reasonable doubt. Even an iota of doubt would make the accused entitled to acquittal. In the case at hand, there are material contradictions in the testimony of PW-1 and PW-4. Various improvements have been made by PW-1 who is the sole eye witness of the alleged incident and this has created a doubt in the mind of the court regarding the involvement of the accused persons in the said incident. Hence, the benefit of doubt is to be given to the accused persons.
33.In view of the above discussion, the court is of the view that the prosecution has failed to establish the guilt of the accused beyond reasonable doubt. Thus, accused persons are entitled to be acquitted. Accordingly, the guilt of the accused have not been proved and they are entitled to be acquitted. Accordingly, accused Rakesh, Sharafat and Moin are acquitted under Section 392/411/34 IPC.
34.Accused Sharafat be released from the custody if not wanted in any other case.
State v. Rakesh & Ors. U/s 392/411/34 IPC FIR No. 219/10, PS Sun Light Colony 21
35.As per section 437-A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused as well as the surety shall remain bound by the personal and the surety bond respectively for a period of six months from today. File be consigned to Record Room.
Announced in the open court (SAUMYA CHAUHAN)
on 10.10.2013 METROPOLITAN MAGISTRATE
SOUTH EAST/SAKET COURT/NEW DELHI
State v. Rakesh & Ors. U/s 392/411/34 IPC
FIR No. 219/10, PS Sun Light Colony