Delhi District Court
3.Title State vs . Rajesh @ Kalia on 22 April, 2013
THE COURT OF SH. SUNIL KUMAR SHARMA :
METROPOLITAN MAGISTRATE
TIS HAZARI COURTS : DELHI
1.FIR No. 07/2003
2.Unique Case ID No. 02401R0968592003
3.Title State Vs. Rajesh @ Kalia
3(A).Name of complainant Sh. Pardeep Garg, s/o Sh. Om Prakash, r/o E-227,
Nehru Vihar, Delhi.
3(B).Name of accused 1. Sanjay s/o Sh. Baljeet r/o Jhuggi, kat Putaly Colony, Shadipur, Delhi (PO).
2. Rajesh @ Kalia s/o Sh. Jai Singh, r/o Jhuggi no. B-347, Kat Putaly Colony, Shadipur, Delhi.
3. Deepak @ Moke s/o Ashok, r/o Jhuggi no. B-
377, Kat Putly Colony, Shadipur, Delhi (expired-proceedings abated).
Second Address of accused Deepak :- B-320, JJ Colony, Camp no.2, Nangloi, Delhi.
4.Date of institution of challan 03.04.2003
5.Date of Reserving judgment Pronounced on the same day
6.Date of hearing the final arguments 22.04.2013.
7.Date of pronouncement 22.04.2013
8.Date of commission of offence 04.01.2003
9.Offence complained of Under Section 392/394/34 IPC
10.Offence charged with Under Section 392/394/34 IPC
11.Plea of the accused Pleaded not guilty
12.Final order The accused Rajesh @ Kalia stands Acquitted U/sec 392/394/34 IPC
13. Date of receiving of judicial file in 03.11.2010 this court FIR No. 07/2003 State v. Rajesh @ Kalia Page No.1/9 BRIEF REASONS FOR THE DECISION OF THE CASE:-
1. The criminal law was set into motion in the present case by complainant Sh.Pardeep Garg s/o Sh. Om Prakash by making a complaint in PS Moti Nagar regarding the robbery of Rs. 3,000/- and a wrist watch make HMT golden colour.
2. The matrix of the prosecution case in a nutshell is that on 04.01.2003 at about 11.30AM at Ram Pura Red Light, Rohtak Road, Delhi within the jurisdiction of PS Moti Nagar, the accused Rajesh @ Kalia in furtherance of his common intention with co accused Sanjay (PO) and Deepak (expired, proceedings abated) committed the robbery and robbed a sum of Rs. 3,000/- and a wrist watch make HMT, golden colour, belonging to the complainant Sh. Pradeep Garg without his consent from his possession by assaulting, restraining and putting the complainant in fear of the instant hurt and thereby committed an offence punishable u/s 392/394/34 IPC.
3. Accordingly, charge sheet was filed, copies were supplied to the accused in compliance of Section 207 Cr.P.C. and on the basis of the material on record, the charge for the offence punishable u/s 392/394/34 IPC was framed against the accused on 03.11.2010, to which he pleaded not guilty and claimed trial.
4. Prosecution for proving its case against the accused persons could examine only four witnesses.
1. PW-1 HC Satbir Singh, MHC(M).
2. PW-2 ASI Kameshwar Jha, Investigating witness.
3. PW-3 W/ASI Julita, Duty Officer.
4. PW-4 Sh. Pradeep Garg, Complainant.FIR No. 07/2003 State v. Rajesh @ Kalia Page No.2/9
PW-1 HC Satbir Singh is the MHC(M) and has deposed that on 04.02.2003 HC Paras Kumar deposited the case property seized in FIR no. 56/03 in Malkhana which was entered into register no. 19 vide serial no. 2153 (OSR).
Photocopy of the relevant entry is Ex. PW1/A. PW-2 ASI Kameshwar Jha is the investigating witness and has deposed that on 04.01.2003 on receipt of DD no. 28B he along with Ct. Jai Prakash went to the place of information that is at Rampura Red Light Jakhira road Delhi and found one bus bearing no. DL1PA2639, route no. 78 was parked and met the driver and conductor of the bus and the complainant Pradeep Garg who was in injured condition and he took him to SGM Hospital in the PCR Van. He got admitted the complainant to the hospital and in the hospital SI Randhir came and recorded the statement of complainant Pradeep Garg and investigated the case.
The witness was not cross examined by the Ld. Counsel for the accused despite opportunity.
PW-3 W/ASI Julita is the duty officer and has proved the FIR Ex. PW3/A and also made endorsement on rukka Ex. PW3/B. PW-4 Sh. Pradeep Garg is the complainant and has deposed that he is in printing work. He do not remember the date, month and year when the incident took place but only remember that the incident took place about 10.30 AM when he was passing through Jakhira by bus with a sum of Rs. 3,500/- in his pocket. He boarded the bus from jakhira bus stop for visiting Rampura, about 3 persons had also boarded the same bus. They surrounded him and took away his money and FIR No. 07/2003 State v. Rajesh @ Kalia Page No.3/9 wrist watch. While taking his property all the three persons had given him fist blows on his face. All those three persons were about 20-25 years old. He doubted that they had knife in their possession. He raised alarm. He reported the matter to the police. His statement Ex. PW4/A was recorded.
The witness has failed to identify the accused Rajesh @ Kalia despite being specifically pointed out by the Ld. APP for the State and detailed cross examination by the Ld. APP for the state.
The witness was cross examined by the Ld. LAC Ms. Pooja Sharma for the accused.
5. No other prosecution witness was examined. The material prosecution witness i.e. PW Tara Chand and Suresh remains untraceable and could not be produced rather a detailed report dated 17.04.2013 regarding the same was placed on behalf of the Additional CP West stating that the said witnesses are not traceable Accordingly, the prosecution evidence was closed. Accused Rajesh @ Kalia was examined u/s 281 read with Section 313 Cr.P.C. on 22.04.2013 wherein the accused submit that he is innocent and has been falsely and wrongly implicated in this case. However, he denied to lead any evidence in defence. The accused Sanjay was declared Proclaimed Offender on 24.07.2009 and the accused Deepak has expired and the proceedings against him were abated vide order dated 04.10.2004.
6. "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 FIR No. 07/2003 State v. Rajesh @ Kalia Page No.4/9 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused".
7. Now the stage has been set to appreciate the entire evidence on record in the light of essential ingredients of offence of the robbery as defined in section 390 IPC and punishable u/s 392 IPC and 394 IPC alleged to be committed by the accused persons and the testimonies of the prosecution witnesses. The essential ingredients of offence of robbery punishable u/s 392 IPC are laid down in section 390 IPC "the said section starts with the wording that in all the robberies there is either theft or extortion and subsequently defined as to when the theft amounts to the robbery as Theft is 'robbery' if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint".
The second portion of the section also defines as to when the extortion tantamount to a robbery if the offender, at the time of committed the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, or instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
The offence of robbery is punishable u/s 392 IPC and if the hurt is caused in committing or attempting to commit the robbery the same is punishable FIR No. 07/2003 State v. Rajesh @ Kalia Page No.5/9 with the imprisonment for life and regress imprisonment which may extent to 10 years and also with fine u/s 394 IPC. The essential ingredients of the same are as under:-
1. Accused committed theft and thereby dishonestly removed the property without the consent of its owner/possessor;
2. Accused caused or attempted to cause some persons -
(a) death, hurt or wrongful restraint;
(b) fear of death or of instant hurt or instant wrongful restraint;
3. Accused did either act-
(a) in committing such theft, or
(b) in order to commit theft, or
(c) in carrying away or attempting to carry away the property obtaining by such theft;
4. Accused acted voluntarily.
8. Now the question which arises for the consideration is that whether the prosecution has been able to produce such evidence on record which warrants the conviction of the accused on the touch stone of the golden principle of criminal jurisprudence that the guilt of the accused has to be proved beyond reasonable doubt.
9. I have heard Ld. APP for the State and Ld. Counsel for the accused. I have gone through the entire record carefully.
10. To prove the offence punishable u/s 392/394/34 IPC the prosecution was required to prove that the accused persons had committed the theft as defined u/s 378 IPC i.e. they have dishonestly removed the property of the complainant without his consent and FIR No. 07/2003 State v. Rajesh @ Kalia Page No.6/9 the same was done by voluntarily causing or attempt to cause the death, hurt or wrongful restrain or the fear of instant death or instant hurt or instant wrongful restraint of the complainant/victim. For bringing the alleged offence within the four corners of section 394 IPC the prosecution is also required to prove that the accused persons had also voluntarily caused the hurt to the victims in committing or in their attempt to commit the said robbery.
11. The prosecution has examined four witnesses in support of its case against the accused person including the victim / the complainant as PW-4 but the said complainant/victim had failed to identify the accused namely Rajesh @ Kalia despite being specifically pointed out by the Ld. APP for the state. The witness had failed to support the prosecution case despite his cross examination by the Ld. Prosecutor and had categorically deposed that 'he is unable to recollect that the alleged incident took place on 04.01.2003 and he is deliberately not identifying the accused'. The star prosecution witness in his cross examination had admitted that he could not see the faces of the alleged persons at the time of the alleged incident and the police did not examine the public witnesses including the conductor and driver of the said bus in his presence. He had also admitted that no documentary proof regarding the robbed wrist watch was either demanded by the IO nor handed over by him to the IO.
12. The remaining witnesses examined by the prosecution are of formal nature and are the witnesses of the investigation only as none of them had seen the commission of the offence. The material prosecution witness i.e. PW Tara Chand FIR No. 07/2003 State v. Rajesh @ Kalia Page No.7/9 and Suresh remains untraceable and could not be produced and the witnesses examined by the prosecution are more or less formal in nature who are not connected with the facts in issue.
13. Apart from it admittedly no recovery of whatsoever nature could be affected either from the accused Rajesh @ Kalia or at his instance and the accused persons were charge sheeted only due to their refusal for participating in the judicial TIP. The star prosecution witness i.e. the complainant Pradeep Garg is examined as PW-1 but the said witness have failed to identify the accused to be the one who has committed the alleged offence. Therefore, there is no evidence against the accused in the present case except his disclosure statement which is inadmissible in evidence and hit by Section 25 of Indian Evidence Act being a confessional statement to a police official. Section 25 of the Indian Evidence Act reads as "no confession made to a police official shall be proved as against a person accused of any offence".
14. The object of the aforesaid prohibition is pointed out by the Hon'ble Supreme Court in State v. Anirudh Singh AIR 1997 SC 2480 as to ensure that the person accused of the offence is not induced to make the confessional statement by threat, coercion or the force.
15. The material prosecution witness i.e. the complainant Pradeep Garg has failed to support the prosecution case regarding the commission of the offence by the accused Rajesh @ Kalia and has failed to identify him in the FIR No. 07/2003 State v. Rajesh @ Kalia Page No.8/9 Court.
16. Considering the peculiar facts of the case particularly in view of the hostility of PW-4 the complainant/victim towards the prosecution case coupled with the fact that no recovery of whatsoever nature was affected from the accused persons further coupled with the fact that the accused was not identified by the complainant in the course of his deposition before the court.
17. The remaining witnesses examined by the prosecution are more or less formal in nature who are not connected with the facts in issue.
18. In view of the aforesaid findings the Court is of the considered view that the prosecution has miserably failed to prove its case against the accused persons Jeevan and Vishal beyond the shadow of the doubt.
19. Accordingly, the accused Rajesh @ Kalia stands Acquitted for the offence punishable u/sec 392/394/34 IPC.
20. Surety bond discharged, bail bond canceled.
21. File be consigned to record room after due compliance.
Announced in the (Sunil Kumar Sharma)
Open Court on 22.04.2013 Metropolitan Magistrate
(West-10), THC,-Delhi
It is certified that this judgment contains 9 (nine) pages and each page bears my signature.
(Sunil Kumar Sharma) Metropolitan Magistrate (West-10), THC,-Delhi/22.04.2013 FIR No. 07/2003 State v. Rajesh @ Kalia Page No.9/9 FIR no. 07/2013 PS Moti Nagar 22.04.2013 Present : Ld. APP for the State Accused Sanjay is already PO.
Accused Deepak has already expired.
Accused Rajesh @ Kalia in preson.
PW Tara Chand and Suresh remains untraceable.
A detailed report of ACP, West, to this effect is taken on record. Remaining witnesses cited by the prosecution are of the witness of investigation. The case pertains to the year 2003.
The material prosecution witnesses remains untraceable. Accordingly, PE stands closed.
Statement of accused recorded wherein it is submitted by the accused that he does not want to lead any evidence in his defence.
Final arguments heard today.
Vide separate judgment dictated and pronounced today in the open Court, accused Rajesh @ Kalia stands acquitted for the offence punishable U/sec 392/394/34 IPC.
Original documents (if any) be returned after cancellation of the endorsement (if any).
Surety bonds discharged, bail bonds cancelled, file be consigned to record room after due compliance.
(Sunil Kumar Sharma) MM-10 (West)/Delhi/22.04.2013 FIR No. 07/2003 State v. Rajesh @ Kalia Page No.10/9