Delhi District Court
State vs . Rajesh @ Kaku & Ors. on 4 February, 2013
IN THE COURT OF SH. SUNIL KUMAR, METROPOLITAN
MAGISTRATE, ROHINI DISTRICT COURTS, DELHI
State Vs. Rajesh @ Kaku & Ors.
FIR No. 248/09
PS Jahangirpuri
The date of institution of case: 25.07.2009
The date of reserving the order: 04.02.2013
The date on which Judgment pronounced: 04.02.2013
JUDGMENT
Unique Identification No. : 02404R0336072009 Date of commission of offence : 03.05.2009 Name of the complainant : Sh. Raj Kumar, S/o. Sh. Shri Dayal, R/o. I931, Jahangirpuri, Delhi.
Name & address of accused : 1. Rajesh @ Kaku, S/o Sh. Gopi Ram, R/o. G1805, Jahangirpuri, Delhi.
2. Mukesh @ Mukki, S/o. Sh. Riju Ram, R/o. C1802, Jahangirpuri, Delhi.
3. Vasu Sharma @ Bunty, S/o. Sh. Shiv Ram Sharma, R/o. H. No. 343, Bhalswa Village, Jahangirpuri, Delhi.
Offence complained of : Section 392/34 of Indian Penal Code, 1860 against all accused persons & Section ` 411 of Indian Penal Code, 1860 against accused Rajesh @ Kaku State vs. Rajesh @ Kaku & Ors., FIR No.248/09, PS Jahangirpuri Page no.1/25 Final order : All accused persons acquitted u/s. 392/34 IPC & accused Rajesh @ Kaku convicted u/s. 411 IPC Date of order : 04.02.2013 BRIEF REASONS FOR DECISION:
1 Briefly stated the facts of the case as alleged by the prosecution and as unfolded from chargesheet are that on 03.05.2009 at about 11.30 pm at Bypass, Near Traffic Booth, Jahangirpuri, Delhi, all the accused persons committed robbery of a mobile make of Samsung C200, ATM Card, gold chain, two gold rings, SBI Card and PNB Card, one PAN Card and Drving Licence, which were the property of the complainant Raj Kumar within his possession. Further, on 24.05.2009 at unknown time at C1805, Jahangirpuri, Delhi, the accused Rajesh @ Kaku got recovered one mobile phone from his possession, which was stolen by him from the possession of the complainant Raj Kumar, which he retained knowingly or having reason to believe the same to be stolen property. On the basis of the statement given by the complainant Sh. Raj Kumar, the present FIR U/s 392/411/34 of Indian Penal Code, 1860 (hereinafter referred to as IPC) was registered at PS Jahangirpuri. On conclusion of investigation, the challan under the aforesaid sections was filed in the court.
2 The accused persons were summoned by the court for facing trial for the aforesaid offences. In compliance of Section 207 Cr.PC.
the copy of the challan and the documents annexed therewith were State vs. Rajesh @ Kaku & Ors., FIR No.248/09, PS Jahangirpuri Page no.2/25 supplied to them. Vide Order dated 24.09.2009 of my ld. predecessor, the accused persons Mukesh and Vasu were discharged in the present case and primafacie a charge U/s 411 IPC was made out against the accused Rajesh @ Kaku. Accordingly, the ld. Predecessor of this court framed charge against accused Rajesh @ Kaku. Thereafter, vide order dated 05.10.2010, ld. Addl. Session's Court set aside the order dated 24.09.2009 in a criminal revision petition filed on behalf of the State. Thereafter, vide order dated 18.03.2011, prima facie a charge u/s. 392/34 IPC against all the accused persons and u/s. 411 IPC against accused Rajesh @ Kaku framed by my ld. predecessor. The accused persons pleaded not guilty and claimed trial to the said charge.
3 In order to substantiate its case, the prosecution has examined 10 witnesses.
4 PW1Raj Kumar is the complainant in the present case, who has deposed that on 03.05.2009 at about 11.30 p.m., he came from Saharanpur after taking the payment of fruits, which they sent at Saharanpur. He had Rs. 66,000/ in the pocket of his pant. On that day, at about 11.30 p.m., when he got down at Bypass Bus Stand, Jahangirpuri and he was making a call at his house, three accused persons who were standing at the bus stop and one of the accused was wearing black cap on his head came to him and over powered him and snatched his mobile phone make of Samsung C200. When he tried to raise alarm, they shut his mouth and grabbed his neck and took him aside and took away his Rs. 66,000/, one gold chain, two gold earrings, one ATM Card of ICICI, SBI, PNB, Corporation Bank State vs. Rajesh @ Kaku & Ors., FIR No.248/09, PS Jahangirpuri Page no.3/25 and Syndicate Bank. They also took PAN Card and Driving Licence. The accused persons also forced him to take off his clothes and he took off all his clothes and handed over to them. Thereafter, he went to his house and after wearing his clothes, he came back at the spot and informed the police from the cell phone of his brother. Police came and recorded his statement vide Ex. PW1/A. He had not identify the accused persons outside the court premises.
This witness was crossexamined by ld. APP for State as he resiled from his earlier statement. During crossexamination, the supplementary statement Mark 'A' from point A to A1 was read over to the witness in toto where it is recorded that he had identified the accused persons outside the court premises. Ld. APP for the State pointed out towards the accused persons and asked the witness to identify the accused persons, if they are the same accused persons who robbed Rs. 66,000/, Cellphone, cloth, gold chain, gold ring and watch, four ATM Cards and Driving licence but the witness failed to identify the accused persons. He admitted that the receipt of the cellphone had been lost. He denied that he identified the accused Rajesh, who caught hold his neck and accused Mukesh and Vasu. He further denied that that he was deposing falsely and that he has been threatened by the accused persons. He has further denied that he is resiling from the truth being won over by the accused persons and that when he gave his statement, no force or coercion was used by the police official. He further denied that he is not identifying the accused persons deliberately as they are resident on his locality and that he has been threatened by them and that is why he is not identifying State vs. Rajesh @ Kaku & Ors., FIR No.248/09, PS Jahangirpuri Page no.4/25 them. He further identified the case property as Ex. P1.
This witness was not crossexamined on behalf of the accused persons despite opportunity granted to them.
5 PW2Ct. Sanjay Kumar has proved the DD No. 6B vide Ex. PW2/A (OSR).
This witness was also not crossexamined on behalf of the accused persons despite opportunity granted to them.
6 PW3HC Sanjay Bhati has deposed that on 23.05.2009, he was posted at Special Staff, West District, Tagore Garden. On that day, a secret information was received through an informer by SI Manoj that three persons would come at Chhattarpati Shivaji Park behind Rajdhani College with the intention to commit some offence and if raided, they would be apprehended. A raiding party was prepared consisting of Inspector Raj Kumar, SI Charan Singh, SI Manoj, ASI Virpal, HC Ved, Ct. Narender, HC Satpal, Ct. Pawan, Ct. Parmod and me. Thereafter, all the raiding team member including the secret informer went to DTC Terminal, Rajouri Garden, Near Chhattarpati Shivaji Park. There SI Manoj requested the passersby to join the investigation but none agreed. The vehicle in which they went there was parked and they took their position on different points near the gate of park. At about 8.00 pm, they saw that three persons i.e. the accused persons present in the court were coming from the side of Punjabi Bagh and were leading towards Rajouri Garden and they State vs. Rajesh @ Kaku & Ors., FIR No.248/09, PS Jahangirpuri Page no.5/25 stopped near the gate of park. At about 8.15pm, at the instance of secret informer, all the accused persons were apprehended. The accused were cursorily searched. From the possession of accused Mukesh, a loaded katta was recovered, from the possession of accused Rajesh @ Kaku, a loaded katta was recovered and from the possession of accused Vasu @ Bunty, a mobile phone was recovered. The accused persons were interrogated and during interrogation, they confessed about their involvement in the present case and about the recovered mobile phone, they came to know that the same was robbed one and in regard of which, a case was already registered at PS Jahangirpuri vide FIR No. 266/09. The disclosure statements of the accused persons were recorded vide Mark A and B respectively. Thereafter, first of all they went to the house of accused Mukesh alongwith other accused persons and from there, accused Mukesh produced a mobile phone from TV trolley and about which, it was revealed that the same was stolen from the area of PS Rajouri Garden. Thereafter, they went to the house of accused Rajesh and from there also, accused Rajesh produced a mobile phone from almirah and about of which, it was revealed that the same was robbed one wanted in the present case. All the recovered phones and kattas were taken into possession and were deposited in PS Rajouri Garden Malkhana. Thereafter, all the accused persons were got medically examined and put behind the bars. He further identified the case property as Ex. P1.
During crossexamination by the ld. counsel for the accused, the witness stated that they reached at DTC Terminal at about 7.30 pm. There were no residential or commercial building around the DTC State vs. Rajesh @ Kaku & Ors., FIR No.248/09, PS Jahangirpuri Page no.6/25 Terminal. He admitted that generally officials from DTC used to sit in the terminal. No one has made any effort to call the DTC staff from the terminal to join the investigation. He admitted that there were DTC buses also coming and going. No driver or conductor of DTC bus was asked to join the investigation. All the three accused were apprehended by them at about 8.15 pm. After apprehending the accused persons, their personal search was conducted. On 24.05.2009 at 8.00 am, they went to the residence of accused Mukesh @ Mukhi at H. No. 1802, CBlock, Jahangirpuri. No one from the neighbourhood was called to join the investigation at the time of recovery of mobile phone from the accused Mukesh @ Mukhi. Thereafter, they went to the house of accused Rajesh @ Kaku and no one from the neighbourhood was called to join the investigation at the time of recovery of mobile phone from the accused. He denied that the accused persons were not apprehended from the spot mentioned above and that no disclosure statement was made by any of the accused. He further denied that nothing was recovered from the possession of the accused persons and that he was deposing falsely.
7 PW4ASI Balvinder Singh has deposed that on 23.05.2009, he was posted at Special Staff, West District, Tagore Garden. On that day at about 9.30 pm, Duty Officer informed him that SI Manoj alongwith other staff members had apprehended three persons with illegal weapons at Chhattrapati Shivaji DDA Park Service Road. Thereafter, he went to the spot where SI Manoj handed over him the custody of accused persons Mukesh @ Mukhi and of Rajesh @ Kaku present in the court, sealed pullandas and relevant documents. The accused State vs. Rajesh @ Kaku & Ors., FIR No.248/09, PS Jahangirpuri Page no.7/25 Vasu present in the court was also present there. He interrogated the accused Rajesh and Mukesh, who gave their disclosure statement vide Mark A and B. He prepared a site plan at the instance of SI Manoj. In the meanwhile, Ct. Parmod reached there with rukka and copy of FIR, which were handed over to him. The accused Rajesh and Mukesh were lodged in case FIR No. 171/09 PS Rajouri Garden. SI Manoj apprehended the accused Vasu in the case u/s. 107/151 Cr.P.C. He deposited the sealed pullanda with MHC(M) PS Rajouri Garden and all the accused persons were taken to their office. He further deposed that on the next day i.e. on 24.05.2009, all the accused persons were again interrogated and on sustained interrogation, they confessed their involvement in many cases. Thereafter, first of all, they went to the house of accused Mukesh alongwith other accused persons and from there, accused Mukesh produced a mobile phone from TV trolley and about which, it was revealed that the same was stolen from the area of PS Rajouri Garden. Thereafter, they went to the house of accused Rajesh and from there also, accused Rajesh produced a mobile phone from almirah and about of which, it was revealed that the same was robbed one wanted in the present case. All the recovered phones were taken into possession and were deposited in PS Rajouri Garden Malkhana. The memos pertaining to taking into possession of phones were also prepared and the seizure memo prepared of mobile phone wanted in this case is marked as Mark 'C'. The information regarding the recovery of case properties were sent at respective PS. Thereafter, all the accused persons were got medically examined and put behind the bars. He further identified the case property as Ex. P1.
State vs. Rajesh @ Kaku & Ors., FIR No.248/09, PS Jahangirpuri Page no.8/25 During crossexamination by the ld. counsel for the accused persons, the witness deposed that he reached at the spot at about 10.00 pm. Except three accused, SI Manoj Kumar, SI Charan Singh, ASI Virpal, HC Ved Parkash, HC Sanjay Bhati, Ct. Pawan, Ct. Parmod, Ct. Narender and Ct. Satpal were already present there. No public persons were present at the spot. The disclosure statement was made by the accused persons in his presence. No one from the public was called to join the investigation when the accused persons made disclosure statement. At the time of arrest, the brother of accused Rajesh @ Kaku was informed. The information regarding the arrest of Mukesh was also given to the brother of accused Rajesh @ Kaku. On next day, they went to the house of accused Mukesh @ Mukhi after 8.00 pm. He cannot tell exactly how much time they spent in the house of accused Mukesh @ Mukhi and also in the house of accused Rajesh @ Kaku. No one from the neighbour of accused persons were called to join the investigation at the time of recovery of mobile phones. He denied that the accused persons were not apprehended from the spot mentioned above and that no disclosure statement was made by any of the accused. He further denied that nothing was recovered from the possession of the accused persons and that he was deposing falsely.
8 PW5SI Ram Kishan is the IO of the present case, who has deposed that on 03.05.2009 in the intervening night of 3/4.05.2009, he was on emergency duty at PS. On that day, the copy of DD NO. 6B was handed over to him regarding robbery and thereafter, he alongwith HC Jasbir Singh went to the spot i.e. Bypass, Mukarba State vs. Rajesh @ Kaku & Ors., FIR No.248/09, PS Jahangirpuri Page no.9/25 Chowk, Near Traffic Booth, Jahangirpuri. There, nobody was found and after sometime, the complainant Raj Kumar returned there from his house. At that time, the complainant was accompanied by his brother and other neighbours. The complainant narrated the incident, which was recorded by him vide Ex. PW1/A. He prepared a site plan Ex. PW5/A at the instance of the complainant. He prepared a rukka Ex. PW5/B and handed over the same to HC Jasbir Singh for getting the case registered. After having got registered, HC Jasbir Singh returned on the spot with rukka and copy of FIR, which were handed over to him. He tried to trace out the culprits. From the spot, he collected some slips in the name of Raj Kumar and a handwritten slip vide Ex. P1 to P4, which were taken into possession by him. Those slips were identified by the complainant. The said slips were seized vide seizure memo Ex. PW5/C. He tried to trace out the culprits but in vain. He further deposed that on 23.05.2009, he received an information from the office of Special Staff, SW regarding the apprehending of accused persons. Thereafter, he went to the office of Special Staff and from there, he collected the photocopies of relevant document of the case FIR No. 171/09 PS Rajouri Garden and of kalandra u/s. 41.1 Cr.P.C. dated 23.05.2009 from ASI Balvinder. The accused persons present in the court were arrested in the present case on 28.05.2009 when they were produced before the Hon'ble Court on production warrant vide memos Ex. PW5/D to PW5/F respectively. He moved an application for the TIP of the accused persons. However, the accused persons refused to join the said proceedings. He recorded the statement of the officials from Special Staff, who had apprehended the accused persons.
State vs. Rajesh @ Kaku & Ors., FIR No.248/09, PS Jahangirpuri Page no.10/25 During crossexamination by the ld. counsel for the accused, the complainant Raj Kumar came at the spot at about 12.45 am. He cannot tell the names and addresses of the persons, who accompanied the complainant. HC Jasbir left the spot for registration of the FIR at about 1.45 am and came back at 2.30 am. The slips were found from the spot at the instance of complainant. He denied that the site plan was not prepared at the instance of complainant and that the slips were not found at the instance of complainant and that he was deposing falsely.
9 PW6Ct. Pawan Kumar has deposed that on 23.05.2009, he was posted at Special Staff, West District and on that day, a secret information was received by SI Manoj that the persons, who were involved in the robbery in the area of West and North West would come at Chattarpati Shivaji DDA Park, Opposite Rajdhani College, Ring Road at about 8.00 pm and if raided, they could be apprehended. The said information was shared by SI Manoj with him and other staff members. A raiding team was prepared and they left for Chattarpati Shivaji DDA Park in two vehicles i.e. Gypsy bearing No. DL 1CJ 7408 and a Maruti car. On the way, SI Manoj got stopped the vehicles at Raja Garden Bus Stop and requested the passersby to join the investigation but none agreed. Thereafter, they went to Chattarpati Shivaji DDA Park and the vehicles were parked under the flyover and they took their position at the places as was directed by SI Manoj. At about 8.10 pm, three persons i.e. the accused persons present in the court came from the side of Punjabi Bagh and they started to wait for someone near the gate of Chattarpati Shivaji Park at a distance of 50 State vs. Rajesh @ Kaku & Ors., FIR No.248/09, PS Jahangirpuri Page no.11/25 paces before the gate. The secret informer pointed out towards those accused persons disclosing their names as Mukesh @ Mukhi, Rajesh @ Kaku and Vasu @ Bunty. Nobody came there to meet with the accused persons and therefore, they apprehended them at the instance of secret informer. From the possession of accused Mukesh and Rajesh, loaded kattas were recovered and from the possession of accused Vasu, a mobile phone make of Samsung was recovered. The recovered phone and kattas were taken into possession. With regard to recovery of kattas, a separate proceedings was done and in this regard, a FIR No. 171/09 was got registered at PS Rajouri Garden. The disclosure statements of the accused persons were recorded. During disclosure statement, the accused persons confessed their involvements in the present case also. In pursuance of their disclosure statements, the accused Rajesh led them to his house and from there, he produced a mobile phone make of Samsung X210 and Mukesh also led them to his house and from there also, accused Mukesh produced a mobile phone make of Cahokia, which was snatched from the area of Rajouri Garden. The recovered phones were taken into possession vide seizure memo pertaining to mobile phone Samsung X210 mark 'C'. The recovered phones were deposited in the Malkhana at PS Rajouri garden. The information about the apprehending of accused persons were sent at the respective PS where they were wanted. The witness has identified the mobile phone as Ex. P1. The other phone is also correctly identified by the witness, who states that the said phone is wanted in another case No. 266/09 PS Jahangirpuri.
State vs. Rajesh @ Kaku & Ors., FIR No.248/09, PS Jahangirpuri Page no.12/25 During crossexamination by the ld. counsel for the accused persons, the witness stated that except him and SI Manoj, there were 7/8 members consisting raiding party. Inspector Raj Kumar, SI Charan Singh, HC Ved Parkash, Ct. Pawan, HC Sanjay Hattie were also in raiding party. He admitted that on the way of spot of raid, some government offices fall on the way to the spot. All the offices were closed at the time of raid as it was late night hours. He admitted that the Chowkidar remains in the offices even on nonworking hours. SI Manoj had not requested any driver or conductor of DTC Bus to join the raiding party. There were no shops near the DTC Bus Stop. There was no SIM present in the mobile recovered from the possession of accused Vasu. He denied that no disclosure statement was ever made by the accused persons. No one was called from the neighbour of the accused Rajesh to join the investigation at the time of recovery of mobile Samsung X210. No one was called from the neighbour of the accused Mukesh to join the investigation at the time of recovery of mobile Nokia. He cannot tell to whom the information of arrest were given as the same was given by IO.
10 PW7HC Parmod has deposed almost on the same lines as deposed by PW6Ct. Pawan Kumar hereinabove and hence, his testimony is not being discussed for the sake of brevity.
During crossexamination by the ld. counsel for the accused persons, the witness stated that except him and SI Manoj, there were 7/8 members consisting raiding party. Inspector Raj Kumar, SI Charan Singh, HC Ved Parkash, Ct. Pawan, HC Sanjay Bhatti were also in State vs. Rajesh @ Kaku & Ors., FIR No.248/09, PS Jahangirpuri Page no.13/25 raiding party. He admitted that on the way of spot of raid, some government offices fall on the way to the spot. All the offices were closed at the time of raid as it was late night hours. He admitted that the Chowkidar remains in the offices even on nonworking hours. SI Manoj had not requested any driver or conductor of DTC Bus to join the raiding party. There were no shops near the DTC Bus Stop. There was no SIM present in the mobile recovered from the possession of accused Vasu. He denied that no disclosure statement was ever made by the accused persons. No one was called from the neighbour of the accused Rajesh to join the investigation at the time of recovery of mobile Samsung X210. No one was called from the neighbour of the accused Mukesh to join the investigation at the time of recovery of mobile Nokia. He cannot tell to whom the information of arrest were given as the same was given by IO.
11 PW8HC Jasbir Singh has deposed that on 03.05.2009, a call regarding robbery was received. Thereafter, he alongwith ASI Ram Kishan/IO went to the spot and at that time, nobody was found there. They continued their inquiry and in the meanwhile, the complainant Raj Kumar reached there. Raj Kumar narrated the incident, which was recorded by the IO, who prepared a rukka, which was handed over to him for getting the case registered. After having the case registered, he returned to the spot with rukka and copy of FIR, which were handed over to the IO. They tried to trace out the culprits but in vain. A site plan was prepared by the IO at the instance of IO.
State vs. Rajesh @ Kaku & Ors., FIR No.248/09, PS Jahangirpuri Page no.14/25 This witness was not crossexamined on behalf of the accused persons despite opportunity granted to them.
12 PW9Retd. SI Jagdish is the Duty Officer in this case, who has deposed that on 04.05.2009, he received a rukka sent by ASI Ram Kishan through HC Jasbir and on the basis of which, he registered the present FIR, carbon copy of which is Ex. PW9/A (OSR). He made endorsement on the original rukka vide Ex. PW9/B. After the registration of FIR, he handed over the copy of FIR and original rukka to HC Jasbir.
This witness was not crossexamined on behalf of the accused persons despite opportunity granted to them.
13 PW10SI Manoj Kumar has deposed almost on the same lines as deposed by witnesses hereinabove and hence, his testimony is not being discussed for the sake of brevity. The witness has identified the phone as Ex. P2 and the phone is wanted in the case FIR No.26/09 PS Jahangirpuri.
During crossexamination by the ld. counsel for the accused persons, the witness stated that the distance between the spot and his office is about 3 Kms. He alongwith the raiding party reached at the spot at about 7.45 pm. There was no bus stop or shop nearby the spot. He did not requested the driver/conductor of the DTC bus to join the investigation. They went to the spot by government gypsy and one private Maruti 800. They did not requested any government State vs. Rajesh @ Kaku & Ors., FIR No.248/09, PS Jahangirpuri Page no.15/25 official in DTC Terminal, Raja Garden to join the investigation. He cannot say particularly but the information regarding the arrest of the accused persons were given to their relatives by the second IO. He left the spot at about 10.30 pm. He denied that he did not join the investigation and that the accused persons were not apprehended from the spot. Thereafter, PE was closed.
14 Statement of accused Rajesh @ Kaku u/s. 313 Cr.P.C. and of accused persons Mukesh @ Mukki and Vasu Sharma @ Bunty u/S 281 Cr.PC were recorded and all the incriminating evidence coming on record were put to the accused persons, in which they submitted that they have been falsely implicated in the present case. They have further submitted that they do not wish to lead any evidence.
15 Ld. Counsel for the accused persons have submitted that the accused persons have been falsely implicated in this case by the police officials. He further argued that the sole materially public witness i.e. the complainant Raj Kumar has turned hostile and did not support the prosecution case. Nothing substantial and convincing has come on record against the accused, which could inculpate him in the present offence. The Prosecution has completely failed to prove the case against the accused beyond reasonable doubt It is further argued that nothing was recovered from the possession of the accused persons and the recovery, if any, is the planted one upon them. It is further argued that the Prosecution has also failed to prove the case against the accused persons beyond reasonable doubt. It if further argued that since the Prosecution could not establish the case against the accused State vs. Rajesh @ Kaku & Ors., FIR No.248/09, PS Jahangirpuri Page no.16/25 persons for the alleged offence beyond shadow of doubt, it is, therefore, prayed that the accused persons may be acquitted of the alleged offence.
16 On the contrary, Ld. APP for the State has submitted that every discrepancy in statements of the witnesses could not be fatal to the Prosecution case. It is further argued that the discrepancies which does not effect the Prosecution case materially does not create infirmity and there is no material discrepancies/contradictions in the Prosecution case. It is further argued that the prosecution has successfully established its case against the accused persons. He has further submitted that the accused may be convicted for the alleged offence as the public witness is procured hostile.
17 I have heard the arguments as advanced by both the parties and perused the record carefully.
18 In the present case, the complainant/main witness is PW1 Raj Kumar, whose above mentioned articles were robbed by the accused persons and as per prosecution version, the mobile phone was recovered from the possession of the accused Rajesh @ Kaku, but, this witness has failed to identify the accused persons before this court at the time of his deposition.
19 I have given my thoughtful consideration to the testimony of the witnesses and found that the sole star witnesses i.e. the Complainant Raj Kumar turned hostile in this case and did not support the State vs. Rajesh @ Kaku & Ors., FIR No.248/09, PS Jahangirpuri Page no.17/25 prosecution case at all. The sole star witness i.e. the Complainant has been cross examined by Ld. APP for the State but nothing substantial and convincing against the accused has come in his testimony despite lengthy cross examination by Ld. APP for the State.
In case law reported as Headhunt Singh vs. State of Punjab 1997 (3) Crimes 55, the Hon'ble Punjab & Maryanna High Court observed as under: "In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbably or lacks "credibility, the benefits of doubt necessarily has to go to the accused".
In the present case also the word credibility as mentioned in the above mentioned case law is found lacking on behalf of the Prosecution. Remaining officials are the police officials who came into picture only after occurrence of the incident and the conviction can not be based on the sole testimony of the police officials as the further corroboration is not found supporting on behalf of the public witness who had allegedly been stated to be present with the police officials throughout the proceedings as per the testimony of the police officials. In absence of the corroboration of the evidences and support on behalf of the public witnesses the case of the prosecution has weakened.
State vs. Rajesh @ Kaku & Ors., FIR No.248/09, PS Jahangirpuri Page no.18/25 The Hon'ble High Court of Delhi in Narain Singh @ Lala vs. State of Delhi 2005 (1) LRC 294 (Del) (DB) has also ruled that:
"There must be a chain of evidence so complete as to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
Further lastly but not the least, the Hon'ble Supreme Court of India in catena of decisions has also held that:
"In Criminal trial benefit of doubt when on the basis of the evidence appearing on record, two views are possible, accused is entitled to benefit of doubt."
20 In view of the facts and circumstances of the case it is crystal clear that the Prosecution has failed to prove its case beyond the shadow of reasonable doubts against the accused persons for the alleged offence u/s. 392/34 IPC. There is no convincing evidence on the record which could substantiate the said charge upon the accused persons.
21 To prove the offence U/s. 411 IPC, the prosecution has to prove that accused Rajesh @ Kaku is the same persons, who was found in possession of said mobile phone and which he had retained knowingly or having reasons to believe the same to be stolen property. The prosecution has successfully proved its case against the accused Rajesh @ Kaku as the main witness PW1Raj Kumar has correctly identified the case property i.e. the mobile phone of black colour of State vs. Rajesh @ Kaku & Ors., FIR No.248/09, PS Jahangirpuri Page no.19/25 Samsung Ex. P1, which was robbed on the day of incident Even PW3 HC Sanjay Bhati, PW4 ASI Balvinder Singh, PW6 Ct. Pawan Kumar and PW7 HC Pramod have also deposed the same sequence in respect to the recovery of the said mobile phone from the possession of the accused Rajesh @ Kaku and corroborated each others testimonies. The said stolen mobile phone was correctly identified by the witnesses mentioned above. The abovesaid police official witnesses are corroborating the fact that the recovery of the stolen mobile phone had been effected from the possession of the accused Rajesh @ Kaku. However, there are minor contradictions in the testimonies of the witnesses but in my opinion these minor contradictions are not effecting the case of the prosecution materially. All these witnesses examined by the prosecution are supporting the case of the prosecution in view of the section 411 of the IPC and their statement on record is found to be cogent and inspires the confidence of the court and there is no reason to disbelieve the same as they are corroborating each other on all material respects and there is no material inconsistency and contradictions in their statements.
22 It has been submitted on behalf of the accused that the statement of the said police officials are not reliable as they being the police officials have falsely implicated the accused in order to solve a blind case and the said case property has been planted upon him. But the said submission of the accused is not convincing to the Court as the testimony of the above mentioned witnesses is found to be trustworthy.
State vs. Rajesh @ Kaku & Ors., FIR No.248/09, PS Jahangirpuri Page no.20/25 In respect to the facts and circumstances of the case reliance can be held on the following case laws:
In case titled as Ayodhya Singh vs. State of Rajasthan AIR 1972 Supreme Court 2501, it is ruled out that:
"According to illustration (a) of Section 114 of the Indian Evidence Act, a man who is in possession of stolen goods soon after the theft is either the theft or has received the goods knowing them to be stolen, unless he can account for his possession. It would, in our opinion, depend upon the facts and circumstances of each case whether the court should draw the presumption that a person found in possession of stolen goods soon after the theft and who has not been able to account for his possession is the thief or whether he is the receiver of the goods knowing them to be stolen. We may state at this stage that the appellant has not been able to account for his possession of the stolen articles and the explanation furnished by him is not at all worthy of credence. Looking to the facts and circumstances of the case, we are of the view that the courts below were justified in drawing the presumption that the appellant was guilty of the offence under Section 457 and 380 Indian Penal Code. The fact that the culprit entered the room on the third floor by opening the window and thereafter broke open a large number of boxes and almirahs and removed huge quantity of gold and silver ware shows that it was not the work of a single individual. The fact that the appellant was found soon after the theft in possession of a very large number of stolen articles shows that he was himself the thief and not the receiver of stolen good".
State vs. Rajesh @ Kaku & Ors., FIR No.248/09, PS Jahangirpuri Page no.21/25 23 The submission on behalf of the accused to the effect that there are major contradiction in the testimony of the witnesses is also not convincing to the Court as this is a well settled law that minor contradiction and discrepancies in the statements of the witnesses is not fatal to the case of prosecution and do not go to the root of the case. The mere statement that being the complainant, PW1 Raj Kumar is likely to falsely implicate the accused can not be a ground to discard the evidence which is otherwise, cogent and credible.
Our own Hon'ble High Court in Manoj @ Manu vs. State of Delhi 2000, I AD (Delhi) 67 has also categorically ruled that criminal justice should not be made casualty of wrong committed by the Investigation Officer. On applying the aforesaid ratio on the given facts and circumstances, it can be empathetically ruled that the minor discrepancies or procedural laps, if any, has to be ignored as the criminal justice system should not be made casualty of wrong committed by the Investigation Officer or any other related official.
The Hon'ble Supreme Court of India in A.N.Venktesh vs. State of Karnataka 2005VIII (AD) (SC) 37 has clearly ruled that, "The circumstances cumulatively taken together leads to the only irresistible a conclusion that the accused alone are the perpetrator of Crime."
On applying the aforesaid ratio in the present case, it is crystal clear that the accused Rajesh @ Kaku is the only perpetrator of crime in this case in respect to the offence U/s 411 IPC.
State vs. Rajesh @ Kaku & Ors., FIR No.248/09, PS Jahangirpuri Page no.22/25 24 Under the aforesaid discussion, it can safely be concluded that the Prosecution has failed to prove a case against the accused persons for the offences punishable U/s 392/34 IPC while on the other hand prosecution has successfully proved a case against the accused Rajesh @ Kaku for the offence U/s 411 IPC. Consequently, the accused persons Rajesh @ Kaku, Mukesh @ Mukki and Vasu Sharma @ Bunty are hereby acquitted for the offence U/s 392/34 IPC and accused Rajesh @ Kaku is convicted for the offence U/S 411 IPC.
Announced and dictated in the open court today i.e. on 04.02.2013 (SUNIL KUMAR) MM/ROHINI COURTS:DELHI State vs. Rajesh @ Kaku & Ors., FIR No.248/09, PS Jahangirpuri Page no.23/25 IN THE COURT OF SH. SUNIL KUMAR, METROPOLITAN MAGISTRATE, ROHINI DISTRICT COURTS, DELHI State Vs. Rajesh @ Kaku FIR No. 248/09 PS Jahangirpuri U/s. 411 IPC ORDER ON SENTENCE 19.02.2013 Present: Ld. APP for the State.
Convict Rajesh @ Kaku produced from JC with ld. LAC Sh.Mukesh Sharma.
Vide separate detailed judgment dated 04.02.2013, the accused Rajesh @ Kaku has been convicted for the offences U/s 411 IPC.
Arguments on the point of sentence heard.
Ld. counsel for the convict has submitted that he is having a family to support and he is the main bread earner of his poor family. Ld. counsel for the convict has submitted that the accused is in custody for about two years. Ld. counsel for the convict has prayed that a lenient view may kindly be taken against the convict and he be released for the period already undergone by him.
On the contrary, ld. A.P.P for the State has submitted that the convict may not be shown any leniency and may be awarded maximum punishment, as prescribed in the law.
After hearing the arguments, on perusal of the material on record and seeing the totality of the circumstances, I am of the considered opinion that a leniency is warranted in awarding the State vs. Rajesh @ Kaku & Ors., FIR No.248/09, PS Jahangirpuri Page no.24/25 sentence to the convict in this case. Accordingly, for the offences u/S 411 IPC, the convict Rajesh @ Kaku is sentenced to imprisonment for the period already undergone by him. Benefit of Section 428 Cr.PC be given to the convict. Convict be released from JC if not required in any other case.
A copy of judgment as well as order on sentence be given to the convict at free of cost.
File be consigned to record room.
Announced and dictated in the open court today i.e. on 19.02.2013 ( SUNIL KUMAR ) MM/Rohini Courts Delhi/19.02.2013 State vs. Rajesh @ Kaku & Ors., FIR No.248/09, PS Jahangirpuri Page no.25/25