Delhi District Court
State vs Rameshwar @ Nanku on 3 June, 2013
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE (NDPS)
DWARKA COURTS, NEW DELHI
SC No.56/1/11
FIR No.19/11
U/s 392/394/308/411/34 IPC
PS Sagarpur
State
Vs.
Rameshwar @ Nanku s/o Sh Sant Ram
BZ68/284 Gali no.1
West Sagarpur, New Delhi
........ Accused
Challan filed on : 08.06.2011
Reserved for Order on : 15.05.2013
Judgment delivered on : 03.06.2013
JUDGMENT
Briefly stated the facts of the prosecution case are that on 21.01.2011 ASI Hari Singh was present in DDU Hospital where Ct. Suresh told him that one person namely Ravinder has been admitted in the hospital. He contacted the doctor and found MLC no.1213/11 incomplete. Injured Rajender was declared unfit for statement by the doctor. Father of injured also met him in the hospital who told that his son would narrate about the incident and State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 1 of 30 he does not know anything. On 24.11.2011 again the injured was unfit for statement. On 26.01.2011 the injured was declared fit for statement and ASI Hari Singh recorded his statement Ex.PW3/A wherein he has stated that on 21.1.2011 he was coming back to his house from Sadar Bazar after payment collection. At about 8.30 p.m on Pankha Road near Aggarwal Sweet Corner when he was going towards his house, one boy named Deepak s/o Kanwar Pal came with his associate on CBZ Motorcycle. Deepak was resident of his locality. Deepak asked him to sit on his motorcycle and that they will drop him at his house. They made him sit in between and the friend of Deepak to whom he was naming as Nanku was driving the motorcycle. When they reached near Tent Wala School, Nagar Van Park, Nanku stopped the motorcycle and they got down from the motorcycle. When he started going towards his house then Nanku caught hold of him and Deepak took out Rs.15,000/ from his pocket alongwith his Tata Mobile Phone no.9210103086. When he raised objection, Nanku and Deepak started beating him and gave stone blow on his head. When he tried to set him free from them, his shirt got stuck in his neck due to which he fell down. He became unconscious. When he regained his consciousness he went to his house. He was got admitted in DDU Hospital. Now he is fully consciousness. Deepak and Nanku have robbed him. On the basis State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 2 of 30 of this statement, IO prepared the rukka and got the case registered vide FIR no.19/11. The investigation was conducted and accused Deepak was arrested on the identification of father of complainant who was found to be juvenile. He got recovered Rs.3800/ from his room. Accused Nanku was arrested on the identification of accused Deepak. Juvenile accused Deepak was produced before Juvenile Justice BoardII. Disclosure statement of accused Rameshwar @ Nanku was recorded who pointed out the place of incident. He got recovered Rs.5700/ from his room which were sealed and seized. Nature of injury was obtained from the hospital. After completion of the investigation, challan was filed.
2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 05.09.2011.
3. The charge against accused Rameshwar @ Nanku was framed u/s 392/394/308/411/34 IPC on 13.02.2012 to which the accused pleaded not guilty and claimed trial.
4. The prosecution in all has examined as many as 6 witnesses. PW1 Rajender Singh is the father of complainant. State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 3 of 30
5. PW2 Ct. Belas has deposed that he joined the investigation on 26.01.2011 and went to DDU Hospital where they found injured Ravinder admitted whose statement was recorded by ASI Hari Singh. Rukka was prepared and he got the case registered. He has further stated that on 28.01.2011 he alongwith IO and father of injured went to the house of one accused Deepak and he was apprehended. He was interrogated by the IO and he produced Rs.3800/ to IO as the amount robbed by him.The said amount was seized vide memo Ex.PW2/A. He has further stated that accused Deepak led the police party to the house of his associate Nanku from where he was apprehended and arrested vide memo Ex.PW2/A and his personal search was conducted vide memo Ex.PW2/B. Disclosure statement is Ex.PW2/C. During interrogation accused confessed his guilt and he produced Rs. 5700/ from his house as being part of money snatched by him alongwith his associate Deepak from Ravinder. The said notes were seized vide memo Ex.PW2/D. Thereafter accused Nanku pointed out the spot of incident near Nagar Van Park, Sagarpur where he alongwith his associates Deepak had consumed alcohol and thereafter they had snatched the amount of Rs.15000/ and one mobile phone from Ravinder and also beaten him. The pointing out State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 4 of 30 memo is Ex.PW2/E. He identified the currency notes Ex.P1 to 13 got recovered by accused Nanku and Ex.2(1 to 10) got recovered by Deepak.
6. PW3 Ravinder is the complainant and victim in this case.
7. PW4 Dr. Samarjeet has deposed that injured was examined by Dr. Sidharth and Dr. Naveen and MLC is Ex.PW4/A.
8. PW5 HC Kehari Singh is the duty officer who recorded FIR. The copy of FIR is Ex.PW5/A.
9. PW6 ASI Hari Singh is the IO of this case and he has deposed that on 21.1.2011 he was present at DDU Hospital where Ct. Suresh told him that one person Ravinder was admitted in the hospital. He went to the injured who was declared unfit for statement. Father of the injured met him and told that his son will disclose regarding the incident. On 26.1.2011 he again visited the hospital and recorded the statement of Ravinder and prepared rukka Ex.PW6/A and sent the same through Ct. Bilas for registration of FIR. On 28.1.2011 accused Rameshwar was arrested vide memo State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 5 of 30 Ex.PW2/A and his personal search was conducted vide memo Ex.PW2/B. He was interrogated and his disclosure statement Ex.PW2/C was recorded. Accused got recovered cash of Rs.5700/ which were seized vide memo Ex.PW2/D. Another person was also apprehended in the present case. He was found namely Deepak (juvenile). Cash of Rs.3800/ was recovered from him. He prepared the site plan Ex.PW6/B. He identified the currency notes Ex.P1 and Ex.P2.
10. The evidence against the accused was put to him in his statement recorded u/s 313 Cr.P.C in which he has pleaded his innocence and deposed that he has been falsely implicated in this case by the police in connivance with the complainant. Accused did not lead any defence evidence. Thereafter the case was fixed for final arguments.
11. I have heard Ld. APP for the State as well as Ld. defence counsel and perused the testimonies of all the PWS and exhibited documents carefully.
12. In the overall analysis of the testimonies of all the witnesses, it is revealed that PW3 Ravinder is the State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 6 of 30 complainant/victim in this case and PW1 Rajender Singh is his father. They are the star witness of the prosecution and whole case of the prosecution depends on their testimonies. Infact they are the backbone of the prosecution case. In his testimony PW1 Rajender Singh has deposed that he is doing doll making business from home. On 21.01.2011 he had given Rs.5000/ to his son Ravinder and sent him to Sadar Bazar for procuring some items for his business and he was also to take payment from the Sadar Bazar. His son had collected Rs.10,000/ from the Sadar Market where he had supplied the dolls and his son also told him on phone that he had collected Rs.10,000/ from Sadar Bazar on that day and at this he told his son to return. At about 11.30 p.m his son Ravinder returned home in injured condition and he was bleeding. On enquiry his son told that he got down near Agarwal Sweet from bus where Deepak and Nanku met him and told him 'tu aj kal bat bhi nahi karta, chal tujhe ghar chhod de'. He was also told that he accompanied Deepak and Nanku on motorcycle and he was dropped by them near tent wala school. He was further told that Nanku caught hold his son and Deepak removed his cash and mobile which was objected by his son Ravinder and at this accused Deepak assaulted with brick on the head of his son. Rs.15,000/ and mobile phone was taken State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 7 of 30 away by the said persons. He was informed about the said facts by his son Ravinder and he took him to PS Sagarpur. His son was taken to DDU Hospital and got admitted there. He has further deposed that he joined in the investigation and Deepak was found standing in the street. He pointed out Deepak (juvenile) and he was arrested. Accused Nanku is also present in the court. In cross examination he has stated that in the year 2011 his son was studying in class 10th as regular student. He admitted that accused was not known to him prior to the case incident and he has seen him first time in the court itself. He admitted that whatever his son told him, he deposed the same in the court. He had sent his son to take the payment from Maurya Toys and he had given a sum of Rs. 10,000/ to his son. He did not give any pakka bill because their business used to be done on the basis of kachcha bill. He gave Rs. 5000/ to his son to bring some raw material for production of dolls. He admitted that his son was fully conscious when he came to him and even in the hospital. He denied the suggestion that no police official accompanied his son to the hospital or that he got himself admitted his son in the hospital. He told the mobile number to the police. He did not hand over the purchasing bill of the said mobile phone to the police. At the relevant time he had two mobile phone, one was kept at his house and one used to remain with him and his State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 8 of 30 phone number is 9210103086 and another number was 9717330544 which used to be kept at home and in the name of his friend. The recovery amount by the police is still with the police. He denied the suggestion that the recovered amount is not belonging to him so he did not claim the same. When his son came to him, the entire clothes of him were blood stained and smeared with blood and same were torned The clothes of his son were changed in the hospital. He does not know whether the same clothes were taken into possession by the police or not. He denied the suggestion that accused has no concern with the present case. On 28.1.2011 he pointed out only towards accused Deepak and no other proceedings or recovery was effected from him or any other person in his presence by the police.
13. PW3 Ravinder is the complainant and victim and he has deposed that his father is doing the business of making dolls and used to supply in Sadarbazar. On 21.1.11 he was sent by his father to Sadar Bazar to collect the payment for the sale of dolls and after collecting the payment he was returning to his home. He got down from bus near Agarwal Sweet and proceeded on foot for his home. There he found Deepak and his friend Nanku who were on CBZ motorcycle. Deepak was known to him. He was stopped by Deepak State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 9 of 30 and he asked him as to what was the matter and as to why he was not talking to him to which he replied that there is no such matter. At this Deepak asked him that he would drop him to his home on his motorcycle. He accompanied them on motorcycle. Motorcycle was being driven by accused Nanku. When they reached near tank wala school near Nagar Park, accused Nanku stopped the motorcycle and they all got down. He started proceedings to his house. There he was caught hold by accused Nanku and Deepak took out Rs.15,000/ from his pocket and mobile phone of TATA and when he resisted he was beating by Deepak and accused Nanku caught hold of him from behind and he was assaulted on his head with stone. When he resisted he was beaten by accused Deepak and Nanku caught hold of him from behind and he was assaulted on his head with stone. When he tried to save himself, his shirt was torned and he fell down and became unconscious. When he regained his consciousness, he went to his home and was then taken to DDU Hospital. He had given his complaint to police on 26.1.2011 in the hospital. His complaint is Ex.PW3/A. Site plan was prepared by the police later on. In cross examination he has deposed that in the year 2011 he was a regular student. He was not doing any job at that time. His father used to ply auto rickshaw at that time. He was knowing Deepak for last four years as he was residing near the State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 10 of 30 house of his relative. They were friends and used to meet regularly. The name of the accused present in the court revealed to him later on. He never met the accused prior to the incident or after the incident except in the court. His father has told him the particulars of the accused when he shown him in the court. He cannot tell from whom he went to collect the payment on that day from Sadar Bazar however, he received the payment only from one person. He never used to help his father in his business and never gone to market for sale of anything. He reached at Agarwal sweet Corner redlight at 8.30 p.m. He denied the suggestion that he had gone to purchase the liquor on that day. He had not consumed liquor on that day even when he was coming back to his home. He was dropped at Gitanjali Park which was about 1 km from his house. His house is situated at about 1 km from the bus stand and he used to go on foot from bus stand to his house. He denied the suggestion that neither his father was running any business at that time nor he went to receive the payment. He denied the suggestion that he falsely implicated the accused at the instance of his father. He had told the police about registration number of motorcycle. He reached home at about 11.30/12 midnight. When he reached home, his father took him to DDU Hospital for medical examination. He had told the police about the mobile and number of mobile which he had on that day State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 11 of 30 with him. That mobile was in the name of his father Rajender Yadav. When he reached home he was in trouser. His trouser was blood and mud stained. He does not know who had taken the said trouser either police or doctor. He had not told the doctor about the alleged incident of snatching and causing injury as he was unconscious at that time. On the next day police had recorded his statement in the hospital. He admitted that the way on which on that day he was allegedly assaulted is a busy road and the public passes through that road even in the night time. He had not shown the place of alleged assault to the police at any point of time. He had told the police that his shirt and vest were also missing on that day. He denied the suggestion that he left the hospital against the doctor's advice and not followed the treatment because he was never beaten by anyone or that he sustained the injuries on road under the influence of liquor. The police has never called him for the identification of the person who allegedly assaulted him. None of the accused was arrested in his presence or at his instance. The police had read over his statement to him outside the court when he appeared before the court for his deposition and told him that this is his statement. The police had also shown him the accused present in the court on that day when he came for his deposition. He admitted that he had not shown any stone to the police at the spot at any State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 12 of 30 point of time.
14. In consideration of the statement of PW1 Rajender father of the complainant and PW3 Ravinder complainant, I have perused the file. PW1 Rajender has stated that on 21.01.2011 he had given Rs.5000/ to his son and sent him to Sadar Bazar for procuring some items and he was also to take payment from there. PW3 Ravinder has stated that his father had sent him to collect payment. He has not corroborated the version of PW1 Rajender that he was given Rs.5000/ by his father (PW1) or that he was to procure some items for the business of his father. On the other hand PW3 has admitted in cross examination that he is 10th pass and in the year 2011 he was a regular student. He has further stated that he never used to help his father in his business and never gone to market for sale of anything. Since in the year 2011 PW3 was a regular student of class 10th as admitted by him, it is highly improbable that he was sent by his father with Rs.5000/ to the market. It is also highly improbable that he was asked to bring raw material or to collect the payment from the client.
15. PW1 Rajender Singh (father of the complainant) has further stated that his son had collected Rs.10,000/ from Sadar State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 13 of 30 Market from the shops where he had supplied the dolls and this fact was told to him by his son on phone. Admittedly, this statement about collection of Rs.10,000/ is hearsay evidence. I have also considered the statement of PW3 Ravinder(complainant) in this respect and on perusal of the same it is revealed that PW3 Ravinder has no where corroborated the version of PW1 Rajender that he had told his father that he had collected payment of Rs.10,000/ from Sadar Bazar. PW3 Ravinder had even not stated in his statement that he had collected a sum of Rs.10,000/ from Sadar Bazar on the alleged day of incident. PW1 Rajender has stated in cross examination that he has sent his son to take the payment from Maurya Toys and he had given a sum of Rs.10,000/ to his son. But PW3 Ravinder has also not corroborated this version that he has collected payment of Rs.10,000/ from Maurya Toys. He has stated in cross examination that he cannot tell from where he went to take the payment from Sadar Bazar. He has never gone to the market for sale of anything. The prosecution has failed to examine any witness from alleged Maurya Toys to prove that PW3 Ravinder had collected a sum of Rs.10,000/ from them on the alleged day of incident. Also there is no document placed on record regarding collection of payment of Rs.10,000/.
State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 14 of 30
16. PW1 Rajender has stated that he had given a sum of Rs. 5000/ to his son to bring some raw material for production of dolls. This version has not been corroborated by PW3 Ravinder that a sum of Rs.5000/ was given by his father for purchase of raw material. He has also not stated as to what raw material was brought by him. His statement clearly indicate that at the time of incident he was not possessing any raw material.
17. PW3 Ravinder has stated that accused Deepak and Nanku came on motorcycle make CBZ. He was asked that they would drop him and he accompanied them and sat in between them and motorcycle was being driven by Nanku. Near Nagar One Park they got down and he started proceedings for his house. Admittedly injured was taken on motorcycle make CBZ by the accused persons. But the IO of this case has not made any effort to recover the said motorcycle. Even the motorcycle number of the said CBZ motorcycle has not been disclosed by the the complainant or IO of this case.
18. PW3 has further stated that when they reached near tank wala school near Nagar one Park there accused Nanku stopped the motorcycle and they all got down from the motorcycle and he State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 15 of 30 started proceedings for his house. There he was caught hold by accused Nanku and Deepak took out Rs.15,000/ from his pocket and his mobile phone of TATA and when he resisted he was beaten by Deepak and accused Nanku caught hold of him from behind. He was assaulted with stone. Admittedly the time of incident of the present case is stated to be between 8.30 to 9 p.m. This witness in cross examination has stated that he was dropped at Gitanjali Park which was about 1 km from his house. However, he himself has stated in his examination in chief that accused stopped the motorcycle near Nagar One Park. He has made contradictory statement regarding the place of incident. Further, the time of incident is not the odd hours of night. The version of PW3 that he was dropped at Gitanjali Park further suggest that he was dropped there but no incident was meted to him by the accused persons. Further PW3 himself has stated in cross examination that his house is situated at about 1 Km from the bus stand and he used to go by feet from bus stand to his house. He used to reach back to his home by 7/7.30 p.m. He admitted that the way on which he was allegedly assaulted is a busy road and public passes through that road even in the night time. As per deposition of PW3, there used to be public persons at the place of incident even in the night time. The incident had taken place between 8.30 to 9 p.m in this case. The house of the State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 16 of 30 complainant is stated to be at the distance of about 1 km from that place. It has not been stated by PW3 that some public persons had witnessed the incident. IO of this case has also not made any effort to associate any public person who had witnessed the incident.
19. PW3 has stated that he was assaulted with stone on his head and when he tried to save himself his shirt was torned. In cross examination he has stated that he had not shown the stone at the spot to the police at any point of time. IO has not tried to recover the said stone. In cross examination he has stated that when he reached at home he was in bare upper body and was wearing only trouser. His trouser was blood and mud stained. He does not remember who had taken the said trouser, either doctor or the police personnel. However, PW1 Rajender who is father of complainant has stated in cross examination that when his son came to him the entire clothes of him were blood stained and smeared with the blood and same were torned i.e. shirt and vest and they were also smeared with soil. The clothes were changed in the hospital. On perusal of the evidence on record it is revealed that the said clothes were not seized by the doctor at the time of examination nor they have deposed anything in this respect. The prosecution has failed to produce the said clothes and stone in the State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 17 of 30 court.
20. In consideration of the allegations made by PW3 Ravinder, I have also perused the MLC Ex.PW4/A. It is mentioned on the MLC 'alleged history of assault', no history of vomit/ENT bleed/seizure. He was semiconscious. On Local Examination following injuries were found:
1. Four 1 cm CLW's on right temporal, right occipital, left parietal, left temporal region.
2. Strangulation mark seen on neck all around front side of neck.
3. Abrasion on right hand and left hand.
4. Swellling over right side of forehead.
21. The MLC finds mention about strangulation marks all around front side of neck at the level of thyroid cartilage. But PW3 Ravinder who is the injured and victim in this case has never stated that he was also strangulated by the accused persons. Therefore the version of injured is not corroborated by MLC as PW3 has never stated that he was ever strangulated by the accused persons in this case. Further it is also mentioned that injury was provisionally simple but because patient did not get the Xray done and did not come for follow up, the final opinion cannot be given. This further makes it clear that PW Ravinder did not report for follow up after examination on 22.01.2011 while it is the case of the prosecution State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 18 of 30 that he was unfit for statement upto 26.01.2012. Had this been the case that patient was unfit for statement, the injured would have been admitted in the hospital but in the present case there is no such evidence as no discharge summary/slip has been filed on record. In my view the MLC do not corroborate the version of PW3 in the present case.
22. PW5 HC Kehari Singh has stated that he recorded the FIR of this case on the intervening night of 26/27.01.2011. The copy of FIR is Ex.PW5/A. I have perused the FIR as well as statement of injured recorded by IO. The statement suggest that incident had taken place on 21.01.2011 in the night while the present case FIR Ex.PW5/A was registered on the intervening night of 26/27.01.2011. The MLC Ex.PW4/A shows that PW4 Ravinder was brought to DDU Hospital on 22.1.2011 at 12.55 a.m and he was examined Jr.Resident and SR Resident (ENT) on the same day. There is no record on file which shows that complainant remained admitted in the hospital thereafter. MLC also shows that the patient did not get the Xray done and did not report for follow up. This further makes it clear that he was not admitted in the hospital. When patient/victim was not admitted in the hospital, it is unexplained as to why the present case FIR was not registered on State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 19 of 30 22.01.2011 itself. PW1 Rajender (father of the victim) has stated that his son came at about 11.30 p.m in injured condition. When his son told about the facts, he took him to Police Station Sagarpur. His son was taken to DDU Hospital and got him admitted there. As per statement of PW1 he took his son to PS Sagarpur but there is no such evidence on record that victim was first taken to PS Sagarpur and thereafter he was taken to Hospital. It is the case of the prosecution that victim after incident went to his house from which suggest that he was conscious. As per statement of PW1 he was also taken to Police Station where police must have recorded his statement. But the case of the prosecution is that his statement was recorded on the intervening night of 25/26.1.2011. Statement of PW1 Rajender (father of victim) clearly shows that the incident was narrated by his son to him on the day of incident itself which further establish that PW3 Ravinder was conscious. PW1 himself in his cross examination has stated that 'it is correct that his son was fully conscious when he came to him and even in the hospital'. In view of the evidence of record and statement of PW1, it can be well said that victim was fully conscious on 21.01.2011. But the prosecution has recorded his statement on the intervening night of 25/26.1.2011. There is no explanation as to why the present case FIR was not registered on 21.01.2011. PW6 ASI Hari Singh IO of State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 20 of 30 this case has stated that he had not conducted any proceedings nor contacted the injured on 22.1.2011 and 23.1.2011. A question was put to him by the Ld. Defence counsel : 'Question: Can you explain any reason or the ground of not recording the FIR or any DD entry in respect of the present case from 21.1.2011 to 26.1.2011? Answer: I have no explanation.'
23. PW3 Ravinder in cross examination has stated that on next date police had recorded his statement in the hospital which clearly establish that the statement of the complainant would have been recorded on 22.01.2011. IO of this case has clearly admitted that he had no explanation as to why FIR or DD entry was not made from 21.1.2011 to 26.1.2011. Therefore it is emphatically clear that the statements were manipulated and afterthought and the FIR is antedated and ante time in the present case.
24. As far as the identification of accused is concerned, I have perused the cross examination of injured/victim PW3 Ravinder. He has stated that he never met the accused prior to the incident or after the incident except in the Court. It is clear that accused Rameshwar was not known to the complainant. He was also not apprehended at the spot. PW1 has also stated that it is correct that accused was not known to him prior to the case incident and he has seen him first time in the court itself. The present State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 21 of 30 accused Rameshwar was not known either by PW1 Rajender (father of victim) or PW3 Ravinder. Therefore, it is not understandable as to how PW3 got recorded his name in his first statement Ex.PW3/A when he did not know him. Further, PW3 has has that he was not called by the police for identification of the person who allegedly assaulted him. It seems that he saw the accused in the court first time. He has further stated that none of the accused was arrested in his presence or at his instance. The police had read over his statement to him outside the court when he appeared before the court for his deposition and told him that this is his statement. The police had also shown him the accused present in the court on that day when he came for his deposition. It has been admitted by PW3 that the accused was not known to him prior to the incident and that he did not see him prior or after incident. The above deposition of PW3 clearly indicate that the accused was shown to him(PW3) first time in the court by the police and therefore identification of accused after he was shown by the police cannot be given weightage and it is not the identification which can be read against the accused. The IO of this case has not taken any step to conduct the TIP of the accused in the present case. There is no explanation on file as to why the TIP was not conducted in this case. It is stated in case law 2001 (1) Crimes 61, Satpal Vs. State State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 22 of 30 of Haryana that : 'IPC 1860 - Sec. 279 and 304 A - Conviction by courts below for offence - Revision - Identity of petition as driver of truck which caused accident - Some of the eye witnesses identified petitioner as driver of truck in the court but they were not knowing petitioner before accident - Driver of truck had run away from spot after accident - Identification of petitioner in court without identification parade would not serve prosecution purpose'.
In case law titled Mohd. Saleem Vs. The State, 1992(1) RCR 277 it is stated in head note that : 'IPC Sec. 376, 366 - Identification Parade - Accused not known to PWS previously - Arrest not made in presence of witnesses - Name of accused not mentioned in FIR - Arrest of accused - Identification parade must be held in such a case. AIR 1977 SC 363 relied'.
25. In the present case also, allegedly the accused had run away from the spot and they were not known to the complainant. Arrest was also not made in the presence of complainant. Accused seemed to have been identified first time in the court after police showed the accused to PW3 Ravinder (complainant). But IO has failed to take any step to conduct TIP of the accused. Therefore, in my view the identification of accused Rameshwar @ Nanku is not State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 23 of 30 proper identification as it was incumbent upon the prosecution to conduct TIP parade in the present case. But prosecution has failed to do so.
26. It is the case of the prosecution that accused Deepak(since juvenile) was arrested and thereafter present accused was arrested. His disclosure statement Ex.PW2/C was recorded. On the basis of disclosure statement, a sum of Rs.5700/ has allegedly been recovered. I have perused the seizure memo Ex.PW2/D. It is not mentioned in the seizure memo as to from which place in the house the said money was handed over by accused. This memo is not witnessed by any independent witness. PW1 has stated that the recovered amount is still with the police. He denied the suggestion that he did not claim as it is not belonging to him. He has also stated that on 28.1.2011 he pointed out only towards Deepak and no other proceedings or recovery was effected from him or any other person in his presence by the police. PW6 ASI Hari Singh has stated in cross examination that he does not know where the currency allegedly recovered from accused Rameshwar was kept in his house vol. He himself handed over the same to them. It is admitted that the amount in question was not recovered on the pointing out of accused. He had noted down the serial numbers of State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 24 of 30 the currency notes. However, no such document was filed on record showing such serial number. PW6 has further stated that he had not got conducted the TIP of the currency notes from the complainant. He had not sealed the currency notes. He deposited the same in open condition directly in the malkhana. He did not show the said currency note to the complainant at any point of time during his investigation.
27. The prosecution has failed to join any independent witness in this case. So, nonjoining the public persons creates doubt in the prosecution case. An important point has been observed in case Law 1998(8) Supreme Court 435 that in absence of independent evidence merely on basis of police officer's evidence about seizure of pistol and cartridge conviction could not be upheld. It is well settled law in the Darshan Singh vs. State of Haryana, 1997(2) CC Cases HC 189 that : "When genuine attempts has not been made to join public witnesses - One is constrained to observe that in case of suppression and misstatement of fact, it is difficult to believe the official witnesses". In case law 1954 S.C 39 (vol.41 C.N.14) titled Trimbak Vs. State of MP it is stated in head note that: State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 25 of 30 'It is the duty of the prosecution in order to bring home the guilt of the person u/s 411 IPC to prove that the stolen property was in the possession of the accused'.
28. An important point has been observed in case Anirudha Agasti @ Surendera Pande Vs. State that presumption u/s 114(a) of Evidence Act, 1872 can arise only if the prosecution has, by clear and cogent evidence, established that an accused person has been in possession of the stolen articles.
29. In case titled Ramadhar Chamar & Ors Vs. State of Bihar it is stated in head note that :
'IPC 1860 - Sections 395 and 412 - Recovery of property stolen in the commission of dacoity - If it is to be made basis for conviction, onus lies on prosecution to prove that the article recovery must be in conscious and exclusive possession of accused - Onus not discharged - Result - Acquittal'.
In case law 2008(1) AD (Delhi) 735 Santsoh Kumar Vs. State, (Delhi) it is stated in head note that : 'IPC 1860, Sec. 328, 379 and 411 - Hurt - Administration of poison - Punishment for theft, stolen property -
Appeal - Held - findings are not sustainable because these are based on conjecture - Medical evidence should be there to establish the administration intoxicating State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 26 of 30 substance was mixed in tea or in the biscuit -
Prosecution failed to establish recovery of some goods from the possession of accused no details of the goods rendered which were recovered from the possession of the accused at the time of his apprehension by PW6 and those goods actually belonged to PW5 - Further recovery of any stolen property from the possession of the accused is not established - Impugned Judgment passed by trial court is set aside and the accused stands acquitted of both the charges.' In case Law titled State Vs. Chotely Lal 1999 CRI. L.J. 3411 it is stated in head note B that : 'Penal Code (45 of 1860), S.411 - Dishonestly receiving stolen property - Proof - alleged recovery of bag from coaccused containing part of stolen property - Offence of robbery and murder against accused persons not made out - theory of recovery of stolen property from accused persons also not believed - Said alleged recovery from coaccused is of no consequence - Conviction of coaccused under S.411, set aside'.
30. It is emphatically clear that there is no independent witness associated in the present case at the time of recovery of currency notes from accused Rameshwar @ Nanku. The alleged recovered currency notes have also not been shown to PW1 or PW3 in the court to establish that it was the same currency notes which was given by PW1 to PW3 or which was collected by PW3 from State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 27 of 30 Sadar Bazar. Further, the prosecution as failed to prove that PW3 was in possession of a sum of Rs.15,000/ on the alleged day of incident. It has been admitted by PW1 that the currency notes are still with police which clearly establish that the same were not belonging to him and that is why he has not tried to get the same released on superdari. The prosecution has also failed to conduct TIP of the currency notes. IO has himself admitted that he had not sealed the currency notes and deposited in the malkhana in open condition. In my view, IO of this case has not conducted the investigation fairly and properly. Therefore, the prosecution has failed to establish that the alleged currency notes were recovered from the accused.
31. In nutshell, in the present case both PW1 & PW3 have made contradictory statements. The FIR is ante dated and ante time. The prosecution could not prove that PW3 was in possession of money on that day. Motorcycle on which the incident had taken place has not been recovered by the IO. TIP of the accused persons as well as case property has not been conducted. PW3 did not identify the recovered currency before the court. IO has failed to join any public witness at the time of recovery or who was present at the time of incident. Identification of the accused before the court State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 28 of 30 seems to be doubtful since it has been admitted by PW3 that he was shown the accused by the police before his statement was recorded and also that his statement was read over to him. MLC of injured do not corroborate the version of PW3. The statements of PW1 & PW3 are unworthy of credit and in the absence of any circumstances & in consideration of the testimonies of above Pws and on the basis of evidence on record the accused cannot be convicted.
32. It is well settled that in criminal cases heavy burden lies upon the prosecution to prove its case against the accused beyond any reasonable doubt and the evidence led by the prosecution should be such that it should not lead to any other hypothesis except to the guilt of the accused. But, as discussed above, the record of this case lack of all such material. There is well settled law in criminal jurisprudence "Stricter the penalty, stricter the proof". It is well settled principle of law in AIR 2003 SC 3609, State of Punjab Vs.Karnail Singh that : "Golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the views which is favourable to the accused should be adopted.The paramount consideration State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 29 of 30 of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the acquittal of the guilty is not less than from the conviction of an innocent".
33. In view of my above discussions, the prosecution has miserably failed to establish even the part of the case regarding recovery of cash belonging to complainant from the possession of accused. So, I am of the view that the accused is entitled to be given the benefit of doubt in this case. I, therefore give the benefit of doubt to accused Rameshwar @ Nanku. The prosecution could not prove the charge against him. I therefore acquit accused Rameshwar @ Nanku for the commission of offence u/s 392/394/308/34 IPC & 411 IPC. He is on bail. He is directed to furnish fresh bail bonds in a sum of Rs.25,000/ with one surety in the like amount in view of the provisions contained u/s 437A Cr.PC. File be consigned to record room.
Announced in the open Court on 03.06.2013 (SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ SPECIAL JUDGE(NDPS) DWARKA COURTS/NEW DELHI State Vs.Rameshwar @ Nanku FIR no.19/11 Page No. 30 of 30