Delhi District Court
State vs Ravinder Kumar on 21 September, 2023
IN THE COURT OF ADDITIONAL SESSIONS JUDGE
(FAST TRACK COURT), SOUTH-WEST DISTRICT,
DWARKA COURT, NEW DELHI
Presided by: Ms. Manika
CNR No. DLSW01-000056-2013
Sessions Case No. 440397/2016
STATE Vs. RAVINDER KUMAR AND ANOTHER
FIR No : 96/2011
Police Station : Baba Haridas Nagar
Under Section : 379 IPC
Date of institution : 24.05.2012
Date of committal to Sessions Court: 03.09.2013
Date of receipt by way of transfer : 06.09.2022
Date of reserving judgment : 20.09.2023
Date of judgment : 21.09.2023
a) Serial number of the case 440397/2016
b) Date of commission of 04.06.2011
offence
c) Name of the complainant Mr. Umesh Godara
S/o Mr. Rajbir Singh,
R/o Santi Ka Muhalla,
Village Barthal, Sector-26,
Dwarka, New Delhi.
d) Name, parentage and 1. Ravinder Kumar
addresses of the accused S/o Mr. Kusheswer
persons R/o RZ-107,
Indera Service Station,
Dhansa Road, Najagarh, Delhi.
2. Sukhbir Singh
S/o Mr. Balwan Singh
R/o H. No. 437, Ward No. 16,
Shastri Nagar, Bahadurgarh,
Haryana.
State Vs. Ravinder Kumar and Another
FIR No. 96/2011 PS Baba Haridas Nagar Page 1 of 23
e) Offence complained of Under Section 379/382/411/34
IPC
f) Plea of accused Both accused persons pleaded
not guilty
g) Final order Accused Ravinder Kumar is
acquitted of the offence
punishable under Section
392/34 IPC.
Accused Sukhbir Singh @
Kabutar already stands declared
a proclaimed offender vide order
dated 15.07.2023.
h) Date of final order 21.09.2023
JUDGMENT
1. Vide this judgment, the accused Ravinder Kumar is being acquitted of the offence punishable under Section 392 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.') in the instant case FIR No. 96/2011, Police Station Baba Haridas Nagar, New Delhi for the reasons mentioned hereinunder.
CASE OF PROSECUTION
2. The case of the prosecution is that on 04.06.2011 at about 11:30 am, while going towards NIIT Paschim Vihar from Najafgarh via Nangloi-Najafgarh Road, near Sant Haridass School, the complainant Mr. Umesh Godara got down from his motorcycle bearing registration No. DL-9S AB-9301 to attend nature's call. He parked his motorcycle under a tree and while he was urinating on the side of the road, two persons came and stole his motorcycle and the mobile phone make Micromax Q-5, which was kept in the boot (diggi) of the motorcycle. He raised State Vs. Ravinder Kumar and Another FIR No. 96/2011 PS Baba Haridas Nagar Page 2 of 23 alarm but nobody stopped the said boys.
3. The circumstances setting the criminal law into motion, as per the record of the case, are that on receipt of DD no. 17 A dated 04.06.2011, Assistant Sub Inspector Sohanvir Singh alongwith Constable Naresh reached at the spot, i.e. Nangloi Road, Jai Vihar, Sant Haridass School, where complainant Umesh Godara met them and got his statement recorded. On the basis of the statement of the complainant, the FIR was registered under Section 379 IPC. Thereafter, the investigating officer prepared the site plan at the instance of the complainant. During investigation, the complainant got his supplementary statement recorded whereby he informed the investigating officer that earlier due to fear, he did not disclose the complete facts to the investigating officer, however, in fact at the time of the incident, the assailants had robbed him of his motorcycle and mobile phone, which was actually not kept in the boot (diggi) of the motorcycle, on the point of a gun. He also added that while leaving the spot on his motorcycle, those boys had threatened him that if he would disclose these facts to anyone, they would shoot him dead. Accordingly, Section 382/34 IPC was added in the investigation. During further investigation, on the basis of the CDRs of the mobile phone of the complainant, the investigating officer reached to accused Ravinder Kumar S/o Kusheshwra from whom the robbed mobile phone having IMEI no. 91004005503675000 was recovered. Accused Ravinder was arrested in the present case. An application for TIP of accused Ravinder was filed by the investigating officer before the State Vs. Ravinder Kumar and Another FIR No. 96/2011 PS Baba Haridas Nagar Page 3 of 23 concerned court, however, accused Ravinder refused to participate in the TIP proceedings. On the basis of the disclosure statement of accused Ravinder, accused Sukhbir (since proclaimed offender) was also arrested formally from Rohtak Jail. An application for TIP of accused Sukhbir was also moved, however, accused Sukhbir refused to participate in the TIP proceedings. He was, however, identified by the complainant in the court complex vide his statement under Section 161 Cr. P. C. recorded in this regard. During investigation, efforts were made to trace the motorcycle of the complainant, however, the same could not be traced. After completion of investigation, charge sheet was filed in the court.
COURT PROCEEDINGS
4. Initially, charge-sheet had been filed against accused Ravinder Kumar and Sukhbir Singh for the offences punishable under Section 379/382/411/34 IPC. In light of the police report and the documents filed along with the same, cognizance was taken vide order dated 24.05.2012 passed by the undersigned while she was posted as Metropolitan Magistrate-12, South-West District, Dwarka Courts.
5. Vide order dated 18.04.2013, passed by the undersigned as Magistrate, charge for the offence punishable under Section 382/34 IPC was framed against both the accused persons and a separate charge for the offence punishable under Section 411 IPC was framed against accused Ravinder to which the accused persons pleaded not guilty and claimed trial.
6. During his testimony recorded on 02.05.2013, the victim State Vs. Ravinder Kumar and Another FIR No. 96/2011 PS Baba Haridas Nagar Page 4 of 23 PW-1 Mr. Umesh Godara deposed that the offenders had snatched his motorcycle and mobile phone on gun point and pointing towards accused Sukhbir, he stated that it was him who was holding the gun. On 24.07.2013, an application under Section 323 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C') was moved on behalf of the State for committal of the case to the Court of Sessions. Vide order dated 03.09.2013 passed by the undersigned as Magistrate, the offence punishable under Section 397 IPC was found to be attracted in the present case and accordingly, the case was committed to the Court of Sessions in terms of Section 323 Cr.P.C.
7. Vide order dated 29.05.2014 passed by the court of Mr. Ashutosh Kumar, learned Additional Sessions Judge, Dwarka Courts, finding that the matter ought to have been tried by the Magisterial Court till completion of evidence of PW-1 including his cross-examination, the matter was directed to be put up before the learned District & Sessions Judge, South-West District, Dwarka Courts, New Delhi for being sent to the learned Chief Metropolitan Magistrate for assigning the same to the concerned Metropolitan Magistrate for further proceedings as per law.
8. Vide order dated 03.06.2014 passed by the court of Ms. Ravinder Kaur, learned District & Sessions Judge, South-West District, Dwarka Courts, Delhi, finding that the Magistrate had rightly formed the opinion and at the right stage, the file was directed to be placed before the court of Mr. Ashutosh Kumar, learned ASJ, South-West District, Dwarka Courts with direction to proceed with the case, as per law.
State Vs. Ravinder Kumar and Another FIR No. 96/2011 PS Baba Haridas Nagar Page 5 of 23
9. The case was received by way of transfer by this Court on 06.09.2022.
10. During the pendency of the case at the stage of final arguments, accused Sukhbir @ Kabutar stopped appearing in the Court. Accordingly, non-bailable warrants were issued against him which could not be executed and accordingly, process under Section 82 Cr.P.C. was issued against accused Sukhbir @ Kabutar. However, despite due execution of process under Section 82 Cr.P.C., accused Sukhbir @ Kabutar did not appear before the court within the stipulated period prescribed under the law and accordingly vide order dated 15.07.2023, he was declared a proclaimed offender.
CHARGE
11. Vide order dated 13.06.2014 passed by the court of Mr. Ashutosh Kumar, learned ASJ, South-West District, Dwarka Courts, charge for the offence punishable under Section 392/34 IPC was framed against both the accused persons and for the offence punishable under Section 397 IPC was framed against accused Sukhbir. Both the accused persons pleaded not guilty to the charge framed against them and claimed trial.
12. Thereafter, on 19.01.2015, a supplementary charge-sheet was received for the offences punishable under Section 379/382/411/482 IPC in respect of accused Ravinder Kumar pursuant to recovery of the stolen motorcycle with forged number plate. The matter was accordingly listed for arguments on the point of framing of additional charge in respect of accused State Vs. Ravinder Kumar and Another FIR No. 96/2011 PS Baba Haridas Nagar Page 6 of 23 Ravinder Kumar. Vide order dated 26.08.2015 passed by Mr. Paramjit Singh, the then learned Additional Sessions Judge-02 (South-West), Dwarka Courts, New Delhi, it was ordered that no additional charge is made out against accused Ravinder Kumar in this case in respect of the supplementary charge-sheet filed qua him.
ADMISSION/DENIAL OF DOCUMENTS
13. In accordance with the provisions of Section 294 Cr.P.C., vide order dated 12.07.2022 passed by the court of Sh. Vipin Kharb, learned Additional Sessions Judge-04, South West District, Dwarka Courts, Delhi, accused persons were called upon to admit or deny the relevant documents relied upon by the prosecution. Both the accused persons admitted the factum of preparation and genuineness of (i) location chart of mobile number 9718611317, (ii) CDR of mobile number 9718611317,
(iii) Customer Application Form of mobile number 9718611317 and (iv) Certificate under Section 65B Indian Evidence Act which were accordingly, exhibited as Ex. A-1, Ex. A2, Ex. A3 and Ex. A4 respectively. In view of the same, prosecution witness i.e. Nodal Officer, Idea mobile number 9718611317 was dropped from the list of witnesses.
PROSECUTION EVIDENCE
14. The prosecution in all examined eleven witnesses to prove the allegations levelled against the accused persons.
15. PW-5 Mr. Umesh Godara, who was earlier examined in the Magisterial Court as PW-1, is the complainant/victim. He is the State Vs. Ravinder Kumar and Another FIR No. 96/2011 PS Baba Haridas Nagar Page 7 of 23 sole eye-witness to the alleged incident in the present case.
16. PW-2 Dr. Jagminder Singh is the learned Magistrate who had conducted the judicial Test Identification Parade of accused Ravinder Kumar vide his proceedings Ex. PW2/B, on the application of the investigating officer Ex.PW2/A.
17. PW-3 Sh. Roop Kumar is the owner of the stolen Micromax mobile phone, which according to him, had been given by him to the complainant Mr. Umesh Godara for use. PW- 7 Mr. Pardeep Kumar is the owner of mobile shop by the name of Partner Telecom Shop at Rangpuri Road from where PW-3 had purchased the Micromax mobile phone model Q5 vide memo Ex. PW-3/A.
18. PW-4 Head Constable Kishan Lal is the duty officer and DD writer, who had recorded DD No. 17A Ex. PW-4/A, FIR Ex. PW-4/B and DD No. 22A Ex. PW-4/C.
19. PW-9 Retired Sub Inspector Sohanbir Singh and PW-12 Sub Inspector A. A. Khan are the investigating officers of the present case. PW-6 Head Constable Naresh Kumar, PW-8 Constable Jaiveer, PW-10 Constable Dinesh Kumar and PW-11 Head Constable Arun Kumar had joined the investigation of the case.
DEFENCE OF ACCUSED PERSONS
20. In their statements recorded under Section 313 Cr.PC, vide order dated 18.08.2022, both accused persons had denied the entire incriminating circumstances appearing in the evidence against them and stated that they were shown to the complainant State Vs. Ravinder Kumar and Another FIR No. 96/2011 PS Baba Haridas Nagar Page 8 of 23 in the police station and that is why they had refused to participate in the TIP proceedings. Accused persons preferred not to lead any evidence in their defence.
21. The record has been carefully perused. The respective submissions of Mr. Girish Kumar Manhas, learned Additional Public Prosecutor for the State as well as Mr. Pramod Kumar, learned Legal Aid Counsel for accused Ravinder Kumar have been duly considered.
ANALYSIS AND FINDINGS
22. The charge against accused Ravinder Kumar is only in respect of the offence punishable under Section 392 read with Section 34 IPC. In order to prove the said charge, the prosecution has examined eleven witnesses.
23. The star witness of the prosecution is PW-5 Mr. Umesh Godara being the sole victim and eye-witness of the alleged incident. It is, therefore, the testimony of PW-5 Mr. Umesh Godara which is to be considered in order to establish the guilt or otherwise of accused Ravinder.
24. A perusal of the record reveals that the statement of complainant Mr. Umesh Godara has been recorded on multiple occasions, both before the commencement of trial as well as during the trial. The first version of the complainant is contained in DD no. 17 A dated 04.06.2011 Ex.PW4/A, which records the information given by the PCR caller, who as per the prosecution was the complainant himself. The second is the version contained in the complaint Ex.PW5/A, which was recorded by the State Vs. Ravinder Kumar and Another FIR No. 96/2011 PS Baba Haridas Nagar Page 9 of 23 investigating officer Assistant Sub Inspector Sohanvir Singh at the spot. The third is the version contained in the supplementary statement of the complainant dated 04.06.2011 recorded under Section 161 Cr. P. C. by the investigating officer Assistant Sub Inspector Sohanvir Singh at the spot itself. The fourth and last is the version contained in the testimony of the complainant/PW-5 recorded in the court.
25. The very first version of the complainant is contained in the PCR call made by him immediately after the incident. A perusal of the said PCR call, which formed basis of DD number 17A dated 04.06.2011, reveals that in the said call, the caller had alleged "0367 कक ब्ललैक कलर हहोन्डड ससुपर गडड़ड़ बन्दक द ददखड कर m/cycle छड़न लल नडनांगलहोई कक तरफ भडगल हलै".
26. The second version of the complainant Mr. Umesh Godara is contained in his complaint Ex.PW5/A recorded on 04.06.2011 by the investigating officer, who visited the spot upon receipt of DD No. 17A Ex.PW4/A. This statement Ex.PW5/A formed basis of the instant FIR. In the said statement, complainant Mr. Umesh Godara stated that on 04.06.2011 he was going towards NIIT, Paschim Vihar from Najafgarh via Nangloi-Najafgarh Road, and at about 11.30 am, when he reached near Sant Haridass School, he got down from his motorcycle to answer nature's call. He had alleged therein that having parked his motorcycle under a tree, while he was urinating on the side of the road, two persons came and stole his black colour motorcycle make CBF Stunner Honda bearing registration No. DL-9S AB-9301 Engine No. State Vs. Ravinder Kumar and Another FIR No. 96/2011 PS Baba Haridas Nagar Page 10 of 23 JC40E5061100 and Chasis No. ME4JC40CCB8049254 and the mobile phone make Micromax Q-5 having SIM of mobile number 9716173834, which was kept in the boot (diggi) of the motorcycle. He further stated that he raised alarm but nobody stopped them. He described those boys to be aged about 22-23 years. In the said statement, complainant Mr. Umesh Godara also stated that he had made a call at 100 number.
27. The third version of the complainant surfaced on the same day i.e. 04.06.2011, by way of a supplementary statement recorded under Section 161 Cr.P.C., which as per the investigating officer PW-9 Sub Inspector Sohanvir was also recorded at the spot itself. In the said statement, the complainant Mr. Umesh Godara stated that till the time of recording of his supplementary statement, he was very scared and due to fear, he had concealed many facts. He added that, while he was urinating, one of those two boys had inserted the keys of the motorcycle, turned on the ignition and rode the motorcycle away. He specified that the said boy was about 5'7" tall with a wheatish complexion and slim body. He added that the other boy was about 5'1" tall with light complexion and average body. He further stated that the second boy kept his hand on his left dub declaring that he was carrying a pistol and threatening to shoot the complainant if he raised alarm, he snatched the complainant's Micromax mobile phone. He clarified that the mobile phone was with him rather than in the diggi of the motorcycle. He further stated that after threatening him, that boy sat behind the other (first) boy on the motorcycle. He added that while leaving, those boys threatened him that if he tried to follow them or call the State Vs. Ravinder Kumar and Another FIR No. 96/2011 PS Baba Haridas Nagar Page 11 of 23 police, they would shoot him. He stated that since he was under
fear, he concealed certain facts and after overcoming the fear, he had disclosed the complete facts to the police.
28. The fourth version of the complainant Mr. Umesh Godara is contained in his testimony recorded during his examination in the court as PW-5. In his testimony, PW-5 Mr. Umesh Godara deposed that during the relevant period, he was pursuing a computer course from NIIT Najafgarh, which had another campus/branch at Paschim Vihar. He further deposed that on 04.06.2011, he was going to an NIIT branch, Paschim Vihar via Nangloi-Najafgarh road on his motorcycle make Stunner Honda black colour bearing registration number DL-9SAB-9301 and at about 11:30 am-12 pm, when he reached near Sant Haridas School, opposite Airforce Sub Station Campus, he stopped his motorcyle, parked it at a distance of about 5 meters from the wall of Airforce Sub Station and went to attend the nature's call. He further deposed that on returning to his motorcycle, while he was tying a handkerchief on his head, the ignition key of his motorcycle was in the motorcycle. He stated that a person came to him and took out a pistol from the dub of his pants, placed the same on his stomach and asked him to leave the motorcycle. Pointing towards accused Sukhbir, PW-5 stated that he was the same person who had asked him to leave the motorcycle on the point of pistol. PW-5 further deposed that in the meantime, the associate of accused Sukhbir, i.e. accused Ravinder, whom he correctly identified in the Court, also came there and sat on the motorcycle. He deposed that accused Sukhbir sat as pillion rider on the motorcycle and asked him to give his mobile phone and State Vs. Ravinder Kumar and Another FIR No. 96/2011 PS Baba Haridas Nagar Page 12 of 23 purse by showing pistol. He further deposed that due to fear, he gave his mobile phone make Micromax having SIM card of mobile number 9716173834 to accused Sukhbir. He further deposed that he was threatened of dire consequences. He stated that thereafter, both accused persons took his motorcycle and fled away from the spot. He further deposed that thereafter, he immediately made a call on 100 number to the police from nearby PCO booth regarding the incident in question and also informed his parents/relatives about the same. He further deposed that after some time, the police came to the spot, where his statement Ex.PW5/A was recorded by the police about the aforesaid incident. He added that after few days of the incident, he was informed by the police that his mobile phone instrument had been traced out/recovered by the police, whereupon he went to the police station, where he identified his recovered mobile phone instrument. He further deposed that thereafter, he was called at Tihar Jail for identification of accused persons in the TIP proceedings, however, the accused persons refused to participate in the TIP proceedings. He identified his mobile phone Micromax Q-5 EZ Pad Mobile phone of black colour having dual SIM facility, bearing IMEI No.910040054531756 and 910040055036756 along with its battery as Ex.P1 in the court.
29. From the aforesaid, it is clear that there are major contradictions and improvements in the various versions of the complainant available on record. It is noteworthy that the first three versions of the complainant as contained in DD no. 17 A Ex.PW4/A, complaint Ex.PW5/A and supplementary statement State Vs. Ravinder Kumar and Another FIR No. 96/2011 PS Baba Haridas Nagar Page 13 of 23 under Section 161 Cr. P. C. are all of the same day i.e. 04.06.2011, which is the date of the alleged incident.
30. While the very first information, i.e. DD no. 17 A Ex.PW4/A, contains mention of a black colour Honda Super vehicle bearing no. 0367, the remaining versions of the complainant contained in the complaint Ex.PW5/A, the supplementary statement dated 04.06.2011 and the testimony of PW-5 are absolutely silent with regard to involvement of any such vehicle. As per the complaint Ex.PW5/A, the motorcycle of the complainant, which was stolen, was a CBF Stunner Honda having registration number DL 9SAB 9301. The complaint does not contain mention of any other vehicle. From DD no. 17 A, it appears that the aforesaid vehicle bearing no. 0367 was used by the offenders in commission of the offence. However, nothing has come on record with regard to the said vehicle either during investigation or trial, including the testimony of the complainant PW-5 Mr. Umesh Godara, which does not specify as to whether the offenders were on foot or had come on any vehicle. Moreover, as per the testimony of PW-5, both the offenders had sat on his motorcycle and fled from the spot. The entire charge- sheet is silent with regard to any vehicle, much less vehicle bearing no. 0367, having been found at the spot. Thus, the information contained in the very first version of the complainant is not supported by the findings during investigation or even by the complainant during trial.
31. Further, while DD no. 17 A Ex.PW4/A clearly states that the victim was looted on the point of gun, the complaint Ex.PW1/A is absolutely silent about any weapon having been State Vs. Ravinder Kumar and Another FIR No. 96/2011 PS Baba Haridas Nagar Page 14 of 23 used in commission of the offence. In his supplementary statement, the complainant has tried to clarify that he could not state the complete facts in his first statement being under fear of the assailants, who had threatened him. However, the said explanation is not very convincing as in DD no. 17 A, which is his very first statement after the incident, he has clearly mentioned about use of a gun in commission of the offence. Moreover, the supplementary statement, which was allegedly made by the complainant after overcoming fear, is also silent about any gun having been shown/used. It only mentions that one of the assailants had kept his hand on his left dub and had told the complainant that he had a gun. Therefore, it is not the complainant's version even in his supplementary statement that he had seen any gun in the possession of either of the assailants, much less that a gun had been shown/pointed at the complainant in order to put him in fear of injury. Further, while appearing in the witness box, the complainant PW-5 deposed that one of the assailants had taken out a pistol from the dub of his pant, placed it on his stomach and asked him to leave the motorcycle. The same is an improvement even over his supplementary statement under Section 161 Cr.P.C. dated 04.06.2011 wherein he had stated that one of the boys had placed his hand on his dub and declared that he was carrying a pistol, while threatening to shoot him in case he raised alarm. Thus, the complainant PW-5 has given inconsistent/improved versions with regard to use or otherwise of gun/pistol in the alleged incident.
32. As per DD no. 17 A Ex.PW4/A, the offenders had robbed the motorcycle of the complainant. The said information is silent State Vs. Ravinder Kumar and Another FIR No. 96/2011 PS Baba Haridas Nagar Page 15 of 23 with regard to any other article having been robbed. In his complaint Ex.PW5/A, the complainant alleged that alongwith his motorcycle, his mobile phone which was kept in the boot (diggi) of the motorcycle had also been robbed. The complainant made an improvement in his supplementary statement under Section 161 Cr. P. C. by stating that one of the offenders, who had declared that he was carrying a pistol, had snatched his mobile phone. In his testimony as PW-5, the complainant further improved his version and deposed that the accused Sukhbir, after sitting on the complainant's motorcycle as pillion rider, had asked the complainant to produce his mobile phone and purse by showing pistol. Thus, the complainant has improved his stand on multiple occasions with regard to the theft/snatching/robbery of his mobile phone.
33. While all the previous versions of the complainant are silent with regard to his purse having been robbed or even demanded by the offenders, in his examination in chief as PW-5, he specifically deposed that the accused Sukhbir had asked him to produce his purse by showing a pistol.
34. Regarding the manner of occurrence of the alleged incident, in his examination in chief, PW-5 Mr. Umesh Godara has deposed that after answering nature's call, he returned to his motorcycle and while he was tying his handkerchief on is head, a person came to him, took out a pistol from the dub of his pant and placed the same on his stomach, asking him to leave his motorcycle. He specifically deposed that at that time, the ignition key of his motorcycle was in his motorcycle. All the aforesaid facts, are alien to the previous three versions of the complainant State Vs. Ravinder Kumar and Another FIR No. 96/2011 PS Baba Haridas Nagar Page 16 of 23 on record. In his previous statements, the complainant had neither mentioned about him having been tying a handkerchief on his head nor about the ignition key of his motorcycle having been lying inserted in the motorcycle, at the time of commission of offence. The said previous statements also do not contain even a whisper about any of the offenders having taken out a pistol, much less having placed the same on the complainant's stomach and asking him to leave the motorcycle. Thus, the complainant has introduced completely new facts in his testimony recorded in the court.
35. The above discussion reveals that complainant PW-5 Mr. Umesh Godara has improved his version to a great extent. The above noted inconsistencies which have surfaced in the complainant's versions at different stages render his testimony unreliable for basing conviction of accused Ravinder.
36. As has already been discussed hereinabove, PW-5 complainant Mr. Umesh Godara is the only eye-witness of the alleged offence being the sole victim. However, as discussed hereinabove, PW-5 Mr. Umesh Godara has considerably changed his versions during investigation as well as during trial. Even if it is believed that in the complaint, he could not disclose the complete facts due to fear of the assailants, his supplementary statement recorded on the very same day ought to have contained all the important details which he had not disclosed in his complaint Ex.PW5/A. However, while appearing in the witness box as PW-5, he has again improved upon his earlier versions. There is no explanation as to why the new facts introduced by PW-5 in his testimony had not been stated by him in his State Vs. Ravinder Kumar and Another FIR No. 96/2011 PS Baba Haridas Nagar Page 17 of 23 supplementary statement dated 04.06.2011 recorded under Section 161 Cr. P. C.
37. This Court is conscious of the fact that the evidence of an eye-witness cannot be brushed aside based on minor contradictions. However, the testimony of PW-5 Mr. Umesh Godara contains material improvements and contradictions, as already noted above. The same casts a shadow of doubt on the entire testimony of PW-1 making it unsafe to rely on him and indict accused Ravinder for the charge framed against him.
38. Not only with regard to the manner of occurrence of the alleged incident, the testimony of PW-5 Mr. Umesh Godara is found unreliable even with regard to identification of the accused Ravinder as one of the offenders. In his testimony, PW-5 Mr. Umesh Godara identified the boy, who had placed the pistol on his stomach, as accused Sukhbir (since proclaimed offender) and accused Ravinder as his accomplice who rode the motorcycle from the spot. However, the identification of accused Ravinder by the complainant PW-5 during his testimony in the court is doubtful. In the TIP proceedings Ex.PW2/B, the accused Ravinder Kumar had stated "I do not want to participate in the TIP because I was shown to the witness by the police in police station". Even in his statement recorded under Section 313 Cr.P.C, accused Ravinder Kumar has specifically stated that he was shown to the complainant at the police station and as such he had refused the TIP proceedings. The said defence of the accused Ravinder is fortified by the testimony of PW-5. In his examination in chief, PW-5 Mr. Umesh Godara has stated that "After few days of the incident, I was informed by the police that State Vs. Ravinder Kumar and Another FIR No. 96/2011 PS Baba Haridas Nagar Page 18 of 23 my mobile phone instrument had been traced out/recovered by the police. Thereupon, I went to the police station, where I had identified my recovered mobile phone instrument. Thereafter, I was called at Tihar Jail for identification of accused persons in the TIP proceedings. But, the accused persons refused to participate in the TIP proceedings". From the above extract of the testimony of PW-5, it is amply clear that he had visited the Jail for Test Identification Parade after his visit to the police station pursuant to recovery of his robbed mobile phone. Further, in his cross-examination, PW-5 stated that "I do not remember after how many days I again viistd the police station Baba Haridas Nagar. I do not know the name of the person who had called from PS Baba Haridas Nagar regarding the recovery of my mobile phone. Telephone call was received by my uncle Sh. Roop Kumar. Probably, I visited the police station Baba Haridas Nagar on the next day of the receipt of telephone call from police station Baba Haridas Nagar. At police station, accused Ravinder was also present. My mobile phone was shown to me and police officials told me that this mobile phone has been recovered from accused Ravinder who was present at the police station". It is clear from the aforesaid extract of the cross-examination of PW-5 that he had seen the accused Ravinder at the police station on the day on which he visited the police station pursuant to recovery of his mobile phone and on the said day, he had also been informed by the police officials that his mobile phone had been recovered from accused Ravinder. When co-related with the above extract of examination in chief of PW-5, the same reveals that the accused Ravinder had been shown to the complainant at the State Vs. Ravinder Kumar and Another FIR No. 96/2011 PS Baba Haridas Nagar Page 19 of 23 police station on the next day of recovery of the mobile phone in question and the same was prior to the TIP proceedings. From the aforesaid, it appears that the complainant PW-5 has identified accused Ravinder Kumar during his testimony based on the representation made to him by police officials regarding the mobile phone in question having been recovered from the accused Ravinder Kumar. Accordingly, the identification of accused Ravinder by complainant PW-5 during his testimony as one of the persons who had robbed him off his motorcycle and mobile phone is not found to be worthy of reliance.
39. The prosecution has alleged that the robbed mobile phone of the complainant had been recovered from the possession of accused Ravinder. In this regard, the prosecution was first of all required to prove the identity and ownership of the alleged stolen/robbed mobile phone. For the said purpose, it examined PW-3 Mr. Roop Kumar who deposed that he had purchased a Mircomax mobile phone from M/s Partner Telecom Shop, Ragpuri Market, Delhi vide bill Ex.PW7/A and that he had given the same to complainant Mr. Umesh for use. However, he was unable to state as to when he had handed over the said mobile phone for use to the complainant. As per the testimony of the investigating officer PW-9 Sub Inspector Sohanbir Singh, the stolen mobile phone was found to have been used by one Mr. Prakash Paswan who informed that the SIM being used therein had belonged to his brother in law Surender who informed that the mobile phone had been given to him by one Ravinder. The investigating officer deposed that while searching for Ravinder, they met a person who informed that Ravinder resided at RZC-
State Vs. Ravinder Kumar and Another FIR No. 96/2011 PS Baba Haridas Nagar Page 20 of 23 17, Part III, Sainik Enclave, Jharoda Road, New Delhi and that the accused Ravinder Kumar was found present at the said address and the mobile phone in question (case property of the present case) was recovered from his possession. In his cross- examination, the investigating officer PW-9 could not tell the name of the person who had told them about the residence of accused Ravinder and stated that he had not even recorded the statement of that person. Further, he admitted in his cross- examination that he had not mentioned in the seizure memo Ex.PW9/B that the recovered mobile phone was having dual SIM. He also specifically stated in his cross-examination that the mobile phone which was recovered by him from the possession of accused Ravinder was without SIM. The testimonies of the recovery witnesses PW-9 Sub Inspector Sohanvir Singh and PW- 10 Constable Dinesh Kumar are lacking in material particulars such as the time of the alleged recovery and the exact place of recovery of the mobile phone in question. In view of the aforesaid, the prosecution has not been able to prove the recovery of the mobile phone Ex.P1 from the accused Ravinder Kumar.
40. The complaint Ex.PW5/A does not mention the IMEI number of the stole mobile phone make Micromax Q-5. Even the supplementary statement under Section 161 Cr.P.C. of the complainant does not mention the IMEI number of the stolen mobile phone. Perusal of the bill Ex.PW3/A reveals that the IMEI numbers mentioned therein are "M_IMEI:
910040054531756" and "S_IMEI: 910040055036755". The IMEI number of the mobile phone alleged recovered from the possession of accused Ravinder Kumar as mentioned in the State Vs. Ravinder Kumar and Another FIR No. 96/2011 PS Baba Haridas Nagar Page 21 of 23 seizure memo Ex.PW9/B is "910040055036750100". Thus, the IMEI number of the mobile phone allegedly recovered from the possession of accused Ravinder does not match with either of the IMEI numbers mentioned in the bill Ex.PW3/A. In his cross- examination, the investigating officer PW-9 has specifically stated that he did not amend or delete any word in the IMEI number while preparing the seizure memo Ex.PW9/B. Moreover, the case property i.e. mobile phone allegedly recovered from the possession of accused Ravinder Kumar was produced in the court in an unsealed condition during the testimony of PW-3 and PW-
5. Accordingly, the identity of the mobile phone Ex.P1 allegedly recovered from the possession of accused Ravinder has not been established as being the mobile phone of the complainant allegedly robbed on the day of the incident.
41. As regards the alleged recovery of the robbed motorcycle, the only material relied upon by the prosecution is the disclosure statement of the accused Ravinder. Needless to say that the same is not admissible in evidence and therefore, not be relied upon.
42. There is no other material on record to corroborate the version of PW-5 Mr. Umesh Godara, who is the sole eye witness in the instant case.
43. In light of the aforesaid discussion, in the considered opinion of this Court, the prosecution has miserably failed to establish the guilt of the accused Ravinder in respect of the charge against him. Accordingly, accused Ravinder is acquitted of the offence punishable under Section 392/34 IPC in the present case.
State Vs. Ravinder Kumar and Another FIR No. 96/2011 PS Baba Haridas Nagar Page 22 of 23
44. Case is adjourned sine die subject to revival upon appearance/arrest/production of accused Sukhbir.
45. File be consigned to record room with direction not to destroy the same.
Announced in the open Court on 21st September, 2023.
Digitally signed by Manika Manika Date: 2023.09.23 18:01:18
+0530
(MANIKA)
Additional Sessions Judge (Fast Track Court) South West District, Dwarka Courts, New Delhi State Vs. Ravinder Kumar and Another FIR No. 96/2011 PS Baba Haridas Nagar Page 23 of 23