Delhi District Court
State vs . Kapil Anand, S/O Sh. Satish Kumar, on 29 March, 2017
IN THE COURT OF MR. RAKESH KUMARI
ADDL. SESSIONS JUDGE/SPECIAL JUDGE:(NDPS)
WEST DISTRICT : TIS HAZARI COURTS : DELHI
:IN THE MATTER OF:
SC No.57867/2016
PS Mundka
U/s 392/397/411 IPC
State V/s. Kapil Anand, S/o Sh. Satish Kumar,
R/o Pocket E19, H. No.24, Sector3,
Rohini, New Delhi.
:J U D G M E N T:
1.Accused Kapil Anand was sent up for trial on the allegation that on 10.04.2016 HC Devender Singh was on patrolling duty in beat area with Ct. Sandeep, Ct. Manjeet and one another Ct. Manjeet and when they reached near drain in front of Hirankudna Mod towards railway line, Main Rohtak Road, they found one truck and a white car Swift Dzire no.DL1CAY4642 parked there near a godown on Khasra no.72. On suspicion they reached near that truck and car and they heard some noise from the cabin of that truck. When they reached near that truck one person, who was having weapon in his hand, got down from the cabin and tried to run away, however, HC Devender Singh with the help of accompanying staff, overpowered him and took into possession the Desi Katta, which the said person carrying in his right hand. On checking, same was found loaded. HC unloaded that countrymade pistol. One another person, who was crying near the said place was inquired and his name was revealed as Puran Mal Saini. That person (SC No.57867/2016) (State Vs. Kapil Anand) Page No.1 of pages 10 told that he is the driver of that truck bearing no.RJ14GC7297. He got recorded his statement wherein he alleged that he is working as a driver on truck no.RJ14GC7297 for the last 5 years. On 08.04.2014, he had unloaded his truck at Mangol Puri and he had received cash freight charges from the party. Thereafter, on 10.04.2014 he had to load his truck for Jaipur with Plywood from Hirankudna Mod, Delhi and he alongwith his helper Subhash went there and waiting for the Godown Owner. At about 01:00 PM one person came there in a white Maruti Swift Dzire car bearing no.DL1CAY4642 and he asked him by exhorting "GAADI BHARNI HAI", to which he agreed. That person called him near his car and told him to bring photocopy of RC of his truck. He went in the cabin of his truck and brought the photocopy of RC and handed over to that person. Thereafter, that person directed him to start his truck and to follow his car. When he was following the car in truck and was going by the side of drain, that person stopped the car and he also stopped the truck there and then that person got down from his car and asked him to sit in his car saying that he had to prepare the gate pass. The said person asked his helper Subhash to open the DAALA (back portion of truck) and thereafter said person had boarded inside the cabin of his truck and started exhorting "JO TERE PAAS HAI NIKAL DE" and while saying so, he took out a pistol from his wearing pant and while showing the same to him, he forcibly took his wallet containing a sum of Rs.1,700/, ATM card, visiting cards and receipts. He raised alarm and in the meantime, HC Devender along with the staff reached near his truck and when that person tried to run away after getting down from truck, he was overpowered by the police along with pistol. In cursory search of accused one purse was found from the pocket of his wearing pant and accused told that it was the same purse (SC No.57867/2016) (State Vs. Kapil Anand) Page No.2 of pages 10 which he looted from the driver of truck. On opening the said purse, it was found containing a sum of Rs.1,730/, one ATM card of SBI upon which Puran Saini was written, three visiting cards and one receipt of Toll Tax. The purse alongwith aforementioned belongings were taking into police possession. Recovered country made pistol, made of iron, was also taken into police possession. It was measured and its sketch was also prepared. From the statement of complainant and facts and circumstances, a case U/s 392/397/411 IPC and 25/57/54/59 Arms Act was found to be made and accordingly FIR in the matter was registered and investigation of the case was marked to ASI Virender Kumar, who inspected the spot. Prepared Site Plan of the place of occurrence. Car used in the crime i.e. car bearing Registration number plate DL1CAY 4642 make Swift Desire of white colour was taken into possession. From the Desk Board of Car one number plate having car noDL1CN 1700 was recovered. Same was also taken into police possession. Accused was arrested in the matter. Statements of witnesses were recorded in the matter. Thereafter, Sec.482 IPC was added in the matter. Exhibits were sent to FSL for expert opinion. Then on conclusion of investigation, charge sheet was filed against the accused Kapil Anand.
2. After supplying copies etc. case was committed to the Sessions being the offence alleged exclusively triable by the court of sessions. Than, after hearing arguments on the point of charge, separate charges U/s 392/397/482/411 IPC and separate charge U/s 25/27 Arms Act were framed against the accused, to which accused pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence.
3. To prove its case, prosecution examined six witnesses in all.
PW1 Sh. Pooran Mal Saini is the complainant. PW2 HC Naresh, is (SC No.57867/2016) (State Vs. Kapil Anand) Page No.3 of pages 10 the duty officer, who proved on record the copy of FIR, his endorsement made on rukka and certificate U/s 65B of Evidence Act as Ex.PW2/A, Ex.PW2/B and Ex.PW2/C respectively. PW3 HC Devender Singh, is the witness who during patrolling overpowered the accused with the help of other police officials. PW4 Subhash is the helper of complainant and eye witness of occurrence. PW5 Ct. Shyama proved on record the DD No.24B vide which HC Devender left his duty for beat no.3 from Police Station. PW6 ASI Virender Kumar (IO of the case, who narrated about his entire role played in the investigation).
4. After conclusion of prosecution evidence, statement of accused U/s 313 Cr.P.C was recorded, wherein accused claimed innocence on the ground of false implication in this case. He stated that he was lifted from the road outside the Police Station Mundka as some altercation had taken place between him and some police officials of PS Mundka regarding taking side of to pass the car on road then he was detained at Police Station and then falsely implicated him in the present case to work out a blind case of robbery. Nothing was recovered from him and case property was planted upon him.
5. I have perused the entire records carefully and given my prolonged consideration to the controversy in hand. Out of the six witnesses examined on behalf of prosecution, Sh. Pooran Mal Saini and Sh. Subhash have been examined as PW1 and PW3 respectively, who are the victim/complainant as well as eye witness of the incident respectively but they did not support the prosecution case at all and were declared hostile witnesses. They were cross examined by Ld. Additional Public Prosecutor at length but they maintained their stand.
6. PW1 Pooran Mal Saini in his statement has stated hat on (SC No.57867/2016) (State Vs. Kapil Anand) Page No.4 of pages 10 10.04.2014, he had unloaded his truck bearing registration no.RJ14GC 7297 at Mangol Puri and he had received cash freight charges from the party. Thereafter, he had to load his truck for Jaipur with Plywood from Hirankudna Mod, Delhi and at about 01:00 PM when he had reached Hirankudna Mod to load the plywood and parked his truck near the godown and was waiting for that person who had booked the plywood from the godown, in the meantime one person came there in a car and asked him as to why he had parked his truck there. Thereafter, that person started grappling with him. That person did not take from him as in the meantime one police official reached there and took that person with him. That person was not carrying any arm with him. Someone might have informed the police. Police reached there. Police did not record his statement. Police had enquired from him and he had stated the same facts as deposed by him in the court. His helper Subhash was also with him on the truck on that day, however, at the time of incident, he had gone to nearby Dhaba to take tea. Police officials took him to P.S. Mundka and obtained him signatures on some blank papers. On seeing the accused, he categorically stated hat he is not that person who had grappled with him on that day and was taken by the police officials from the spot.
Even during the course of his cross examination by Ld. Addl. PP for the State he did not change and denied that accused Kapil Anand is the same person who robbed him of his wallet containing Rs.1,700/ and other documents by showing pistol to him or that he is the same person who was apprehended by the police in his presence. He also denied that accused Kapil Anand was arrested by the IO in his presence or that during his formal search his wallet (SC No.57867/2016) (State Vs. Kapil Anand) Page No.5 of pages 10 containing Rs.1,700/ and other documents were recovered from his possession in his presence or that IO took into possession the same vide seizure memo. He further denied that countrymade pistol along with one live cartridge recovered from the possession of accused Kapil Anand was snatched by police in his presence or that IO prepared the sketch of the same and the same was sealed by the IO in a pullanda with his seal of DS or that the same was taken into possession by preparing memo.
PW4 Mr. Subhash, (who was the helper of complainant during the relevant time) stated that on 08.04.2016 Puran Mal was the driver on the truck on truck no.RJ 14GC 7297. They had unloaded the glass which was loaded in the said truck at Mangolpuri and thereafter, they had gone to Hirankudna Mor with the said truck as they had to load Ply wood from the godown situated there. They had parked their truck near the godown at Hirankudna mor in front of the godown. In the meantime, he had to got for urination in the nearby bushes and when he came back, near his truck, he found his driver, Puran Mal shouting. He asked him the reason, who (Pooran) told him that one person had grappled with him inside the cabin and thereafter, he ran away from the spot. He categorically stated that he had not seen the said person, who was running from there, as he was not present at the spot at that time. After seeing the accused, he stated that he cannot identify him as he had not seen him at the spot or nothing had happened in his presence. Police did not apprehend accused Kapil Anand near the spot in his presence.
This witness was also cross examination by Ld. Addl. PP but during that course also he did not change his version and stated that (SC No.57867/2016) (State Vs. Kapil Anand) Page No.6 of pages 10 police did not record is statement. However, inquiry was made from him about the incident and he had told the police the same facts as deposed by him in the Court. He denied that accused Kapil Anand reached at the spot in his Swift Car bearing registration no.DL IC AY 4642 or that first of all he asked that he had to get loaded the said truck or that he had collected the copy of the RC of the truck from Puran Mal Driver in his presence. He further denied that accused had asked him to open the back door (dala) of the truck or that in the meantime, accused, entered into the cabin of the truck or that after hearing shouting of Puran Mal, driver, he reached there and found accused Kapil Anand running from the cabin of the truck or that he was apprehended by the police officials who were present near the spot and inn the presence of Puran Mal as well in his presence.
7. In view of aforesaid, the prosecution has been failed to establish that the accused present in Court is the same person, who has robbed the complainant/victim on the point of country made pistol.
8. Now let us see, how far the prosecution has been able to establish the factum regarding recovery of robbed articles from/or at the instance of accused.
9. As per the case of prosecution, the incident took place at the time when it was broad day light and it is not the case of prosecution that the place of incident was a complete isolated place. If it was so, then there must have public persons available there. However, despite of that no independent public witness has been joined in the investigation at any point of time. No serious effort on part of investigating agency to join independent public witnesses in the investigation appears to have been taken. Admittedly no notice under Section 160 Cr.P.C. was served to (SC No.57867/2016) (State Vs. Kapil Anand) Page No.7 of pages 10 any of the public persons who refused to join investigation nor their names or addresses were noted by the investigating officer. It is a well settled proposition that nonjoining of public witness shrouds doubt over the fairness of the investigation by police. Section 100 (4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under: " ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the (SC No.57867/2016) (State Vs. Kapil Anand) Page No.8 of pages 10 prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O.
should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of nonjoining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
10. As regards to the factum of recovery, the prosecution has produced and examined PW3 HC Devender Singh, who in his testimony deposed that in cursory search of accused one black wallet containing a sum of Rs.1,730/, one ATM card of SBI and other documents was found and the complainant had identified that wallet as of him stating that accused robbed him of his wallet inside the truck. By the said deposition of PW3, it transpired that the said recovery has (SC No.57867/2016) (State Vs. Kapil Anand) Page No.9 of pages 10 been effected in the presence of PW3, however, in his testimony PW3 has categorically denied that accused Kapil Anand was arrested by the IO in his presence or that during his formal search his wallet containing Rs.1,700/ and other documents were recovered from his possession in his presence or that IO took into possession the same vide seizure memo. This create doubt about the recovery of looted articles. In the aforesaid set of circumstances, the recovery of country made pistol from the accused is also doubtful and possibility of implanting the same can not be ruled out.
11. For the reasons enumerated here in above, I hereby hold that the prosecution has failed to prove its case as per law for the charges U/s 392/397/482/411 IPC & U/s 25/57 Arms Act against the accused Kapil Anand. Accused is therefore acquitted of the offences charged with. Accused is on bail in this case. He is directed to furnish his personal bond in the sum of Rs.10,000/ with one surety of like amount within a week in view of the provisions of Sec.437A Cr.P.C.
12. File be consigned to Record Room after completion of necessary formalities.
(Announced in the open (RAKESH KUMAR1)
Court on 29 March, 2017) Addl. Sessions Judge/Special
th
Judge (NDPS) (West)
Tis Hazari Courts, Delhi
(SC No.57867/2016) (State Vs. Kapil Anand) Page No.10 of pages 10