Delhi District Court
State vs . Sekhawat. on 6 September, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE08,
PATIALA HOUSE COURTS, NEW DELHI.
Presided by: Sh. Tushar Gupta
FIR No. 593/13
PS: Delhi Cantt.
U/s 392/34 IPC
State vs. Sekhawat.
JUDGMENT
a) ID No. of the case : 3551/2017
b) Date of Commission of : 21.10.2015
offence
c) Name of complainant/ : Sh. Rampal Uppal
informant
d) Name of the Accused & his : Shekhawat
parentage S/o Sh. Hazi Yousuf
R/o H. No. A37,
Jiauddinpur, Mustafabad,
New Delhi.
e) Offences complained of : U/s 392/34 of IPC
f) Plea of the Accused : Pleaded not guilty
g) Final Order : Acquittal
h) Date of such order : 06.09.2022
State Vs. Shekhawat FIR No. 593/2013 PS Delhi Cantt. Page No.1/12
Statement of facts and reason for decision:
1. Final report is against accused Shekhawat. The accused is facing trial for commission of offence punishable under section 392/34 of Indian Penal Code (in short "IPC").
2. Briefly stating, prosecution case is that on 21.10.2015 at about 10:30 am, at Dhaula Kuan flyover near pump house within the jurisdiction of Police Station Delhi Cantt. the accused along with his three accomplices (not apprehended) in furtherance of their common intention committed theft of golden kada and ring from the possession of complainant Rampal Uppal and in committing theft or in carrying away the said article the they caused hurt or wrongful restraint to complainant and voluntarily put him in fear of instant hurt or instant wrongful restraint thus accused committed offence punishable u/s 392/34 IPC. On the basis of statement of the complainant, instant case FIR No. 593/2015, u/s 392/34 IPC, PS Delhi Cantt. was registered. During course of investigation, the chargesheeted accused was arrested. The accused allegedly, disclosed his involvement in the theft of the gold kada and ring in the instant FIR case.
3. After completion of investigation, Charge Sheet (Final Report, u/s 173 of Criminal Procedure Code, 1973, in short 'Cr.PC') for commission of offences punishable u/s 392/34 of IPC was filed in the court.
4. On 30.06.2017, final report was filed in the court. After completion of procedural requirement, matter was listed for charge.
5. Vide order dated 15.12.2017, charge for commission of offences punishable u/s 392/34 of IPC was framed against accused. Accused pleaded State Vs. Shekhawat FIR No. 593/2013 PS Delhi Cantt. Page No.2/12 not guilty and claimed trial. Accordingly, matter was listed for examination of prosecution witnesses (in short 'PE').
6. The prosecution examined 09 witnesses in its favour:
PW1 Rampal Uppal deposed that he was retired as an engineer from Blue Star Limited. He does not remember the exact date of incident but on the eve of Durga Ashtami at about 10:30 am, he was going to his office in his car bearing number DL 9CX 5488. When he reached at Dhaula Duwa near Dhaula Kuwa police chwoki and crossed the police chowki and went to the flyover near pumping station, he perceive that somebody was chasing him on scooter. Window of his car was opened. The said scooterist apprended his car while putting his scooter in front of his car after overtaking his car from the left side. His two other associates also came from wong side and stopped his scooter near his car window like a manner as to he could not open his door. Then, the person who firstly apprehend him, entered in his car and hold his left hand and overpowered, at that time, his right hand was free. The said person suddenly seeing his right hand and also saw the 'Gold Kada', in the mean time, he also pointed out towards the person who was standing near his gate of the car and introduced that he is the person who had committed three murder and threatened him that if you want your child or family would safe then hand over all these articles to him and suddently snatched his 'gold kada' and 'ring with neelam'. Thereafter, all the said persons, fled away from the spot in wrong direction i.e. Budha Garden side. His statement was recorded in PP Subrato Part which is exhibited as Ex.PW1/A. Police prepared the site plan at his instance which is exhibited as Ex.PW1/B. On 04.05.2017, he was called in Tihar Jail where he identified one of the accused persons. The TIP proceedings of accused Shekhawat was produced in the sealed (sealed with seal of SA) yellow envelope i.e. TIP proceedings conducted on 04.05.2017. The said TIP State Vs. Shekhawat FIR No. 593/2013 PS Delhi Cantt. Page No.3/12 proceedings is exhibited as Ex.PW1/C. Witness further submits that the person whom he identified in TIP proceedings on 04.05.2017 is present in the Court (correlty identified by the witness). He deposed that can identify his golden kada and ring with neelam if brought in the Court. He again said that accused is not present in the Court. He falsely said that accused is present in the Court. Thereafter, Ld. APP for the State has crossexamined him. He was duly cross examined by Ld. Counsel for the accused.
II. PW2 SI Sumer Singh deposed that on 22.02.2017, he was with ATS Punjabi Bagh, West District as Sub Inspector. On that day, at about 07:00 pm, he received a call from SI Sandeep Dabas who informed him that he had apprehended four persons who has used fire arm on police official near underpass, Shakarpur, Cement side. Thereafter, he went to the spot where he found SI Sandeep Dabas was found present alongwith four persons namely Sakhawat, Nasimuddin, Gulzar and Naeem. SI Sandeep Dabas handed over all the accused persons alongwith care property to him. In the meantime, HC Rupesh reached at the spot after getting registration of FIR no. 90/17 and handed over the copy of FIR and original rukka to him as rukka had already been sent by SI Sandeep Dabas for registration of FIR prior to his arrival at the spot and the investigation of FIR no. 90/17, PS Punjabi Bagh was marked to him. He prepared the site plan of the spot. All the accused persons were arrested by him in the case FIR no. 90/17, PS Punjabi Baqag and thereafter, they returned at PS Punjabi Bagh and case property was deposited in Malkhana. All accused persons were interrogated by him in ATS office where on 26.02.2017, during PC remand accused Sekhawat, present in the court today (correctly identified by the witness) had disclosed his involvement in the present case. This information was sent to PS Delhi Cantt and concerned IO of the present case came to ATS office and all revelant documents were State Vs. Shekhawat FIR No. 593/2013 PS Delhi Cantt. Page No.4/12 handed over to him. IO recorded his statement. Further, the Ahlmad in the court of Sh. Puran Chand, Ld. ASJ02, THC, Delhi brough the original case file bearing FIR no. 19/17, PS Punjabi Bagh, New Delhi. The photocopy of disclosure statement of accused Sekhawat S/o Sh. Hazi Yousuf which is in judicial file which is already Ex. PW/3 A (OSR).
III. PW3 HC Vikas Kumar deposed that on 22.02.2017, he was posted ATS west district, New Delhi as Head Constable. On that day, he although HC Rupesh were present in his office. One secret informer came to his office and he informed that the persons involved in Namaste Gang will come on two scooty at Cement side, Punjabi Bagh, New Delhi, if raided they would be apprehended. This information was transmitted to SI Sandeep Dabas. SI Sandeep Dabas had met with Inspector Surinder Singh Sandhu and shared this information. A raiding party was constituted by SI Sandeep Dabas and the matter was brief to all the members. The raiding party was consisiting with SI Sandeep Dabas, SI Baramdev, ASI Dilbag, ASI Dipender Singh, HC Rupesh, HC Naveen, HC Manjeet, HC Ved Prakash, HC Ved Prakash, Ct. Yogesh, Ct. Amit, Ct. Satender, Ct. Amit and him and informer. They all went to the spot in two private car and one zypsi. SI Sandeep Dabas requested four five public persons to join the raiding party but no one come forward and left the spot without disclosing their name and addresses. Thereafter, as per direction of SI Sandeep Dabas, they all took their position. At about 04:25 pm, four persons came on two scooty. As soon as SI Sandeep Dabas gave signal by raising his hand, they ran towards the scooties. On seeing them the accused persons had fired towards them and starting running towards cement siding after leaving their scooties at the spot. They chased the accused persons and all the four persons were apprehended by them. Accused Sekhawat present in the court (correlty identified by the witness) was apprehended by him. The accused was State Vs. Shekhawat FIR No. 593/2013 PS Delhi Cantt. Page No.5/12 produced before SI Sandeep Dabas. SI Sandeep Dabas prepared the rukka and got registered the present FIR through HC Rupesh. In the meantime, SI Sumer Singh reached at the spot and all the accused persons alongwith case property and relevant documents were handed over to SI Sumer Singh. Accused persons were interrogated by SI Sumer Singh. SI Sumer Singh prepared the site plan at the instance of SI Sandeep Dabas. Accused persons were arrested by SI Sumer Singh in case FIR no. 90/17, PS Punjabi Bagh. Thereafter, they all alongwith accused persons and case property went to the Punjabi Bagh and case property was deposited in Malkhana and they all returned back to ATS office, Punjabi Bagh. Accused persons were interrogated by IO SI Sumer Singh and disclosure statements of accused persons were recorded. Accused Sekhawat discloses his invlovement in the present case on 26.02.2017. IO recorded his statement. Further, the Ahlmad in the Court of Sh. Puran Chand, Ld. ASJ02, THC, Delhi brough the origianal case file bearing FIR No. 19/17, PS Punjabi Bagh, New Delhi. The photocopy of disclosure statment of accused Sekhawat, S/o Sh. Hazi Yousul which is in judicial file is now Ex. PW/3A (OSR).
IV. PW3 (inadvertently written as PW3 Instead of PW4) W Ct. Rakhi deposed that on 21.10.2015, She was posted at PS Delhi Cantt. as DD writer and her duty hours were from 08:00 am to 08:00 pm. On that day, at about 11:15 am, she received an information from control room which was given by Ct. Girish and the information was with respect to robbery by three boys at around about of Dhaula Kuan, fly over, Delhi Cantt. The said three boys robbed one gold kada and one gold ring on pretext of showing katta. She reduced the same information into writing vide DD no. 18 dated 21.10.2015, and after writing the same, she handed over the same to ASI Devender for further course of action. She had brought the relevant register i.e. Roz State Vs. Shekhawat FIR No. 593/2013 PS Delhi Cantt. Page No.6/12 Namcha register of year 2015 and in the said register the above mentioned information reduced in writing on the back page of page no. 54 at serial no.
18. The copy of said DD is now Ex. PW3/A (OSR).
V. PW4 Ct. Virender deposed that on 21.10.2015, he was posted as Ct. at PS Delhi Cantt. On that day, he was peforming my emergeny duty from 08:00 am to 08:00 pm alongwith ASI Devender. On that day, ASI Devender received information of the present case vide DD no. 18 and after receiving the said DD, he joined the investigtion alongwith him in the present case and reached the spot i.e. AIIMS Road, Dhaula Kuan, flyover. When they reached there, no one was found there and they were also unable to contact with complainant on his phone as the number was not reachable. Thereafter, they came back to PP Suroto Park and at that time, complainant Ramphal came to there and IO made interrogation from the complainant and recorded his statement which is already Ex.PW1/A. On that basis of said statement, IO prepared rukka and same was handed over to him for registratin of FIR. Thereafter, he went to PS Delhi Cantt for registration of FIR and after registration of FIR, he went to PS Delhi Cantt for registration of Devnder already reached there. He handed over copy of FIR and original rukka to IO. Thereafter, they came back to PP Subroto Park where his statement was recorded by the IO. He was duly crossexamined on behalf of accused.
VI. PW5 Ct. Arun Kumar deposed that he was posted as constable at PP Subroto Park, PS Delhi Cantt. On 23.10.2015, ASI Devender asked him to got to PS Kamla Market, Crime Records bureau for getting the portrait prepared. He along with complainant Ram Pal Uppal went to PS Kamla Market, Crime Records and got one portrait prepared. The same is Ex.PW5/A. He was duly crossexamined by LAC for the accused.
State Vs. Shekhawat FIR No. 593/2013 PS Delhi Cantt. Page No.7/12VII. PW6 Ct. Sandeep Yadav deposed that on 23.10.2021, he was posted at Mobile Crime Team, Dwarka. The investigating Officer asked him to collect finger prints from Maruti Alto Car No. DL 9CX 5458. He inspected the said car and collected one sample from the driver side's window vide memo Ex.PW6/A. He was duly crossexamined by LAC for the accused.
VIII. PW7 retired SI Devender Singh deposed that on 21.10.2015, he was posted as ASI in PS Delhi Cantt in the police post Subroto Park. On that day, he was on emergency duty from 08:00 am to 08:00 pm, thereafter, he received the DD entry No. 18 he along with Ct. Virender reached the spot i.e. Dhaula Kuan near House Pum, they found that nobody was present at the spot. Thereafter, they called the complainant and the said phone was not reachable. In the evening, the complainant himself came to police station Dhaula Kuan. Thereafter, he along with Ct. Virender accompanied by complainant went to the spot and done mauka muilaja (inspection of the place) of the incident and thereafter, statement of complainant was recorded which is already exhibited as Ex.PW1/A . After making the endorsement, he sent Ct. Virender to PS Delhi Cantt, for registration of FIR. In the meantime, at the instance of complainant, he made the side plan which is already Ex. PW1/B. Thereafter, statement of complainant was recorded u/s 161 Cr.P.C. Thereafter, on 23.10.2015, the said car was brought by the complainant to PS and he had apprehension that finger prints can be there on the car. Thereafter, they went to Dwraka and take chance print from the car and chance print of complainant was also taken. The chance print of complainant which is not exhibited as Ex. PW7/A . On 02.12.2015, they had sent the chance print to Kamla Market for matching. On 14.12.2015, he was transferred and the said file was handed over to MHC(R).
State Vs. Shekhawat FIR No. 593/2013 PS Delhi Cantt. Page No.8/12IX. PW8 SI Uday Singh deposed that on 08.03.2017, he was posted as SI in PS Delhi Cantt. He had received the DD entry DD No. 17 A. By this DD entry, it was informed that the accused had disclosed his involement in the present case. As the present case was earlier filed in untrace, so he filed the application for reopening of the present case which is not exhibited as Ex.PW8/A. Thereafter, on 09.03.2017, an application for production warrant of accused moved in the Court which is now exhibited as Ex.PW8/B. Thereafter, he got transferred from the PS Delhi Cantt.
X. PW9 retired SI Suresh Kumar deposed that on 15.02.2016, he was posted as SI in PP Subroto Park, PS Delhi Cantt and the case file was handed over to him for further investigation as ASI Devender got transferred from this case. After the investigation and scrutiny of the file. He filed the untrace report on 18.02.2016, which is marked as Mark PW9/A. On 31.10.2017, he got retired from Delhi Police.
7. On 01.10.2021, accused admitted several documents in this statement recorded u/s 294 Cr.PC, i.e. DD No. 17B dt. 23.02.2017 Ex. A1, FIR No. 59/2015 Ex. A2, and TIP proceedings dated 04.05.2017 Ex. A3.
8. On 07.06.2022, statement of accused was recorded u/s 313 r/w Section 281 of Criminal Procedure Code, 1973 (in short'Cr.P.C') in which he chosen not to lead evidence in his defece. Plea of the accused person was basically denial simpliciter.
9. I have heard arguments on behalf of prosecution as well as defence.
State Vs. Shekhawat FIR No. 593/2013 PS Delhi Cantt. Page No.9/1210. It is argued by Ld APP for the State that information was given to the police very promptly. It is further stated by Ld APP for the State that during the statement under section 313 Cr.P.C. of the accused, accused has been provided with an opportunity to put his defence and to explain the circumstances of the accident but accused simply pleaded false implication and came out with a complete denial approach. Ld APP for the state relied upon the judgement of Honourable Apex court in Neel Kumar versus State of Haryana (2012) 5 SCC 766 and in Phula Singh versus State of HP AIR 2014 SCC 1256 in which it is held that if accused remained silent or in complete denial and did not furnish any explanation while answering to the questions under section 313 Cr.P.C., then court can take adverse inference against him and consider it as an additional link in the chain of circumstances to sustain charge against him.
11. Learned counsel for accused has further argued that accused is an innocent person and having good faith in the Lord and is not having any previous involvement in any other case as this case has been falsely implicated by the police officials on the instance of the complainant.
12. In the instant case, only issue for determination is whether the accused committed offence of robbery as defined u/s 390 of IPC, punishable u/s 392 of IPC?
13. As per section 390 of IPC, robbery is either theft or extortion. Theft is robbery under the following circumstances:
(i) If in order to commit the theft or
(ii) In committing the theft or State Vs. Shekhawat FIR No. 593/2013 PS Delhi Cantt. Page No.10/12
(iii) In carrying away or attempting to carry away property obtained by theft, the offender voluntarily causes or attempts to cause to any person death, hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint. Extortion is robbery if the offender is in the presence of a person put in fear and then commits extortion.
14. To arrive at just conclusion, it is necessary to analyse material on record. Let us firstly discuss whether the offense of robbery is made out or not. As per the testimony of PW1 he deposed that on the date of incident the accused apprehended him, entered in his car and overpowered him. Now to this extent I did not find any contradiction or any doubt in the testimony of the wintess/complainant. However there is a dispute regarding the identity of the accused. The identity of the accused has not been duly established by the prosecution beyond reasonable doubt. During his examination in cheif the accused was duly identified by the witness. However thereafter during the examination in cheif the witness deposed that he failed to identify the accused and he has wrongly identified the accused previously. Thereafter the witness was cross examined by Ld. APP with the permission of this court. In his cross examination witness deposed that he correctly identify the accused in the Test Identification Proceedings ( hereinafter TIP). Thereafter the witness was again asked to identify the accused to which witness deposed that accused is not the same person whom he identified in the TIP proceedings. Therefore it can be very well said that accused was not identified by the witness before the court and the identity of the accused remain disputed. It is argued by Ld. APP that the accused was duly identified by the witness in TIP proceddings. The said TIP prceedings are on record which is Ex. PW1/C. After going through the State Vs. Shekhawat FIR No. 593/2013 PS Delhi Cantt. Page No.11/12 same this court found that accused was correctly identified by the witness in the said TIP proceedings. It is a settled law the identification of the accused before the court is imperative and in absence of identification before the court the identification can not be solely based on the TIP proceedings. The evidentry value of the TIP is merely a corroborative and it can not be used as substantive piece of evidence. Nevertheless it is deposed by the witness that the TIP was conducted after the lapse of almost 2 years and during that period the photographs of the accused were shown to the him. Thus it can be said that the identification of the accused is fully doubtfull and prosecution has failed to estanlished the identity if the accused. There are serious lapses and contradictions in the depostion made by complianant pertaining to the identity of the accused.
15. The above noted facts make the prosecution story highly unreliable. Sufficient materials have not come on record to prove the guilt of accused. The prosecution has failed to prove its case beyond reasonable doubts which is hall mark of the criminal law jurisprudence. Accordingly, accused Shekhawat is acquitted of the offences charged with.
16. After compliance with Section 437A Cr.P.C on furnishing of bail bond for a sum of Rs. 10,000/ alongwith one surety, file be consigned to Records.
Pronounced in open court (TUSHAR GUPTA)
today i.e. 06.09.2022. MM08/Patiala House Court
New Delhi/06.09.2022
State Vs. Shekhawat FIR No. 593/2013 PS Delhi Cantt. Page No.12/12