Delhi District Court
State vs 1 Rohtash S/O Tirath Ram, on 1 September, 2009
Page 1 S/V Rohtash etc.
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE -VI
cum ADDL.SESSIONS JUDGE (EAST), KARKARDOOMA
COURTS, DELHI.
SC No.04/2009
FIR No.318/2008
Police Station Mayur Vihar
Under Section 392/397/411/34 IPC & 25 of Arms Act.
State Versus 1 Rohtash S/o Tirath Ram,
R/o House No.5/448,
Trilok Puri, Delhi.
2 Dharmender S/o Desh Raj,
R/o House No.5/318,
Trilok Puri, Delhi.
JUDGMENT
The two accused, namely, Rohtash and Dharmender (both in judicial custody) hav been asked to stand trial by the police of PS Mayur Vihar, for the offences punishable under Section 392/397/411/34 IPC and Section 25 of Arms Act.
Page 2 S/V Rohtash etc. 2 Briefly stating, the facts of the prosecution case
are that on 8.10.2008, while on patrolling, ASI Anwar Khan (PW5) reached at the Chowk of 18 Block Pusta Road, where Const.Sanjeev Kumar (PW2) and Const.Harender (PW4) met him. They heard some noise coming from Village Chilla, 18 Block Pusta Road upon which the ASI along with the two constables rushed towards that place and reached near the second electricity pole. They found two persons running from there, who were chased by them, but out of the two boys, one managed to escape in the bushes by taking advantage of the darkenss. The other boy was apprehended by the police after chasing few steps, whose name came to known as Dharmender, son of Desh Raj.
3 Meanwhile, one person by the name of Chandra Bhushan Singh (PW1) (hereinafter shall be referred as complainant), came to the ASI and made statement that he was Page 3 S/V Rohtash etc. working as Cameraman in the Star News at Sector69, Noida (UP). On that day at about 9.30 PM, he was going to his house via 18 Block Pusta Road, but his motorcycle stopped due to some problem just before the Ganda Nallah, near Dharamshala Cancer Hospital. When the complainant was checking his motorcycle, then two young boys suddenly came to him, one of whom showed him the knife. The other boy took out his mobile phone, make NOKIA 1600 and the purse of cherry colour containing his identity card of Star News, PAN Card, three credit cards, two debit cards, driving license and Rs.1500/. Thereafter, both the said boys started running. The complainant raised alarm and then, the ASI along with the two contables came there. 4 ASI Anwar Khan (PW5) made search of the apprehended boy, namely, Dharmender and got recovered one identity card of Star News from the right side pocket of his wearing pant. The said boy told to the ASI, the name of his Page 4 S/V Rohtash etc. companion as Rohtash. The ASI seized the recovered identity card, Ex.P1 vide memo, Ex.PW1/B. On the basis of the statement, Ex.PW1/A of the complainant, the ASI prepared the rukka, Ex.PW5/A and sent the same through Ct. Harender (PW4) to the duty officer for the registration of the case. The duty officer, ASI Krishan Pal (PW3) recorded the FIR, computerised copy of which is Ex.PW3/A and then, made his endorsement Ex.PW3/B on the rukka, regarding registration of the case. 5 The investigation of the case was taken over by ASI Anwar Khan (PW5) himself. During investigation, accused Dharmender pointed out to the ASI, the place of occurrence vide memo, Ex.PW1/L. The ASI prepared the site plan Ex.PW1/M and recorded the statements of the witnesses. The ASI arrested accused Dharmender vide memo, Ex.PW1/C and conducted his personal search vide memo, Ex.PW1/D. The information of the arrest of accused Dharmender was given to his father.
Page 5 S/V Rohtash etc. 6 Accused Dharmender told the name of his
companion as Rohtash son of Tirath Ram. The investigating officer of the case, ASI Anwar Khan (PW5) obtained one day PC remand of the accused vide application, Ex.PW5/B and on his pointing out, arrested the other accused Rohtash vide arrest memo, Ex.PW1/J and his personal search was conducted vide memo, Ex.PW1/K. The information of the arrest of accused Rohtash was given to his wife, Bandana. The mobile phone, make NOKIA 1600 and the purse containing cash of Rs.273/ along with three credit cards, two debit cards, three identity cards and a telephone diary was recovered from accused Rohtash. All the articles were converted into a pulanda and were seized by the ASI vide memo, Ex.PW1/E. Accused Rohtash pointed out the place of occurrence vide memo, Ex.PW1/I and got recovered the button actuated knife, Ex.P1/1 used in the commission of crime against the complainant. The ASI prepared the sketch of the Page 6 S/V Rohtash etc. knife, Ex.PW1/H, measured the same after converting the same into a pulada, seized it vide memo, Ex.PW1/F. Later on, the ASI deposited the said knife in the malkhana. The investigating officer of the case, ASI Anwar Khan (PW5) also collected the details of previous involvement, Ex.PW5/C and Ex.PW5/D of the two accused, namely, Rohtash and Dharmender.
7 After completion of the investigation, the challan was put up in the court of the Metropolitan Magistrate, where the two accused were supplied with the copies of the chargesheet and the documents of the prosecution and then, the case was committed to the Sessions Court for the trial of the accused persons.
8 The charges were framed against the two accused on 22.1.2009. Accused Rohtash and Dharmender were jointly charged for the offences punishable under Section 392 read with Page 7 S/V Rohtash etc. Section 34 IPC as well as for the offence punishable under Section 397 IPC.
9 Accused Rohtash was separately charged for the offence punishable under Section 25 of Arms Act for having in possession one button actuated knife, having blade of 11 cms, without any permit or licence.
10 Accused Dharmender was also separately charged for the offence punishable under Section 411 IPC for having in possession the identity card belonging to the complainant, having knowledge or reason to believe that the said property was a stolen property.
11 Both the accused persons pleaded not guilty to the charges framed against them and claimed trial. 12 The prosecution has examined total five witnesses in support of its case. Out of those witnesses, PW1 Chandra Bhushan Singh is the complainant. PW2 Ct. Sanjeev Kumar and Page 8 S/V Rohtash etc. PW4 Const.Harender joined the investigation conducted by PW5 ASI Anwar Khan, whereas PW3 ASI Krishan Pal was the duty officer in the police station at the relevant time. 13 The statements of the two accused have been recorded under Section 313 Cr.PC. Both the accused have showed their ignorance of the present case and have taken the defence that they are innocent and have been falsely implicated. The accused persons have not examined any witness in support of their defence.
14 I have heard Shri Sanjay Kumar, learned APP for the State : Shri V.K. Singh, amicus curiae for accused Rohtash and Shri Anil Shrivastava, learned defence counsel for accused Dharmender. I have carefully gone through their submissions and the record of the case.
15 The learned amicus curiae and the defence counsel have submitted that the complainant Chandra Bhushan Page 9 S/V Rohtash etc. Singh is the sole witness of the occurrence who has not fully supported the case of the prosecution. There is no independent corroboration to the facts as deposed by the complainant. The complainant has made inconsistent statements during his examinationinchief, in the cross conducted by the APP and in the cross conducted by the defence. There are various material contradictions in the statements of the prosecution witnesses on the point of arrest of accused Rohtash and recovery of knife from his possession and that their statements may not be relied upon to convict the accused persons.
16 On the other hand, the learned APP has submitted that statement of the complainant is not hostile to the case of the prosecution and during his crossexamination by the APP, he has admitted the case of the prosecution. 17 The case of the prosecution regarding robbery of mobile phone make Nokia 1600 and cherry colour purse Page 10 S/V Rohtash etc. containing articles at the point of knife, revolves around the statement of complainant Chandra Bhushan Singh (PW1), the sole witness of the occurrence. The police officials came into picture only by chance due to raising of alarm by the complainant.
18 The complainant has stated that on 8.10.2008 he was working with Star News at Noida. On that day, at about 9.30 PM, after finishing his work he was going to his house via Film City, 18 Block, Pushta Road. When the complainant reached at the red light, near Dharamshila Hospital, his motorcycle stopped due to some problem. He started checking the motorcycle. Meantime, two persons came from behind, one of whom was having knife and put the same on the complainant. The other boy took out the mobile phone and cherry colour purse containing articles of the complainant. After committing the robbery against the complainant, both the accused ran away from the spot. The Page 11 S/V Rohtash etc. complainant raised alarm, upon which 23 police officials came there and chased the said two boys. One of the two boys namely Dharmender was apprehended, but the other other boy managed to run away. From the search of accused Dharmender, identity card Ex.P1 of the complainant was recovered which was seized by the police vide memo Ex.PW1/B. The police recorded the statement of the complainant Ex.PW1/A and arrested the accused Dharmender vide memo Ex.PW1/C. Accused Dharmender pointed out the spot vide memo Ex.PW1/L. 19 Complainant further stated that on the next day i.e. 9.10.2008, the other accused namely Rohtash was apprehended in his presence by the police from his house and his purse Ex.P2 containing cash of Rs.273/, three credit cards, two debit cards, PAN card and driving licence Ex.P3 was recovered. From the pocket of accused Rohtash, a knife Ex.P1/1 was recovered which was seized vide memo Ex.PW1/F. The accused Rohtash Page 12 S/V Rohtash etc. led them to the place of occurrence and pointed out the spot vide memo Ex.PW1/I. The complainant was declared hostile and was crossexamined by the Ld. APP.
20 The investigating officer ASI Anwar Khan (PW5) has stated that on 8.10.2008 he was on patrolling duty and when he reached near Vasundhara Pull, 18Block, Pushta Road, then there he met Ct. Sanjeev (PW2) and Ct. Harender (PW4). They heard the noise of bachaobachao which was coming from the side of village Chilla, Pushta Road. They all ran towards that direction. When they reached near the 2nd electricity pole at Pushta Road, they saw one person standing near the motorcycle and was raising the alarm. After seeing the police officials, the two boys started running. They were chased and one of them namely Dharmender was apprehended, whereas the other accused managed to escape. From the search of accused Dharmender, one identity card of the complainant was recovered.
Page 13 S/V Rohtash etc. The ASI recorded the statement of the complainant, prepared the rukka and got the case registered. The accused Dharmender was arrested at the spot and then they all came back to the police station. On the next day on the pointing out of accused Dharmender, accused Rohtash was apprehended from 13 Block Trilokpuri, near a Church. Meantime the complainant also arrived there and identified the accused Rohtash as the companion of accused Dharmender. From the search of accused Rohtash, belongings of the complainant were recovered. Accused Rohtash led the police party to Safeda Park, near Pushta, 18 Block, Trilokpuri from where he got recovered button actuated knife from the bushes.
21 The witnesses of the prosecution have made inconsistent statements and also, there are various material contradictions in the statement of those witnesses.
Page 14 S/V Rohtash etc. 22 The complainant in his examination in chief has
stated that after committing robbery, when the accused ran away, only thereafter he raised the alarm and police officials came there. On the other hand, IO ASI Anwar Khan (PW5) stated that on hearing the noise when they reached at the spot they saw the complainant who was being robbed by two boys. On seeing the police, the said two boys started running. Ct. Sanjeev Kumar (PW2) stated that when they came to the spot, they saw two boys running and one person was standing near the motorcycle who was raising the alarm. Ct. Harender (PW4) stated that when they came to the spot, on raising alarm by the complainant, the complainant told them that he was robbed and on his telling, they ran towards the direction in which the robbers ran away. 23 From the above statements of the police witnesses, it is not clear whether the accused persons ran away after seeing the police party. It is also not clear whether the Page 15 S/V Rohtash etc. accused persons had already run away from the spot and later on they were chased in the direction as told by the complainant. It is also not clear whether the complainant raised the alarm after fleeing away of the accused persons from the spot or at the time of committing robbery, which was alleged to be seen by some of the police officials also.
24 Ct. Sanjeev Kumar (PW2) stated in his cross examination that both the accused were running towards the park side. Ct. Harender (PW4) stated in his crossexamination that the two boys were running towards Chilla Village side; one boy jumped into the bushes on right hand, whereas the other boy ran away straight towards Chilla village. Investigating Officer ASI Anwar Khan (PW5) during crossexamination stated that accused Dharmender was apprehended at few steps while the accused Rohtash ran towards Safeda Park bushes.
Page 16 S/V Rohtash etc. 25 From the above statements of the police
witnesses, it is not clear as to in which direction the accused persons ran away after committing the crime against the complainant.
26 The search of accused Dharmender and recovery of identity card of the complainant in his presence from the possession of accused Dharmender is also in doubt. The investigating officer (PW5) of the case and the two constables namely Ct. Sanjeev (PW2) and Ct. Harender (PW4) have stated that after the apprehension of the accused Dharmender, he was brought to the spot and there his search was conducted in the presence of the complainant in which one identity card of the complainant was recovered which was seized at the spot. 27 The complainant has falsified the statements of the police officials by stating in his crossexamination conducted on behalf of accused Dharmender, that the accused Dharmender Page 17 S/V Rohtash etc. was taken to the police station and he went to the police station after about 1015 minutes. The complainant was told by the police officials in the police station that his identity card was recovered from the accused Dharmender. He categorically stated that his identity card was not recovered in his presence from the possession of accused Dharmender.
28 The manner of apprehension of the accused Dharmender from the spot is also doubtful. Ct. Harender (PW4) has stated that first of all the accused Dharmender was apprehended by Ct. Sanjeev (PW2). Investigating Officer ASI Anwar Khan (PW5) has stated that the accused Dharmender was apprehended by all the three police officials. Whereas, Ct. Sanjeev (PW2) is silent in this respect. The complainant does not know as to who overpowered the accused Dharmender. 29 From the above statement of three police officials, the manner of apprehension of accused Dharmender from the Page 18 S/V Rohtash etc. spot has not been established by the prosecution beyond reasonable doubt.
30 It is important to note that the complainant in his crossexamination stated that one police Gypsy also arrived at the spot in which 23 police officials were sitting. He also stated that 23 police officials also came at the spot on foot and the accused Dharmender was apprehended by the police officials on foot. The statement of the complainant regarding arrival of Gypsy with 23 police officials has not been corroborated by any of the three police officials. If the complainant and the aforesaid three police officials, namely, investigating officer, ASI Anwar Khan (PW5), Const.Sanjeev (PW2) and Const.Harender (PW4) would have been present at the spot, then they would not have made different statements about the manner of apprehension of accused Dharmender and arrival of police gypsy with 23 police officials in it.
Page 19 S/V Rohtash etc. 31 The version of the police witnesses is that the
accused Dharmender was arrested at the spot and the memos regarding his arrest and seizure of identity card of the complainant as well as the rukka were prepared at the spot itself. The duty officer ASI Krishan Pal (PW3) stated that he received the rukka of ASI Anwar Khan (PW5) at about 11.10 PM of 8.10.2008 and it took half an hour for him to record the FIR. Ct. Harender (PW4) has stated that after registration of the case, he came back at the spot and there the identity card of the complainant was seized and the accused was arrested. 32 The complainant has categorically stated in the crossexamination that he remained at the spot for about 1015 minutes and thereafter he reached the police station at about 9.45 PM. He categorically stated that his statement Ex.PW1/A was recorded by the investigating officer in the police station and all the memos were also prepared by the police in the police Page 20 S/V Rohtash etc. station. He has categorically stated that the site plan Ex.PW1/M was prepared in the police station. He further stated that seizure memo Ex.PW1/B of his identity card and arrest memo Ex.PW1/C of the accused Dharmender were prepared by the police on 9.10.2008.
33 In view of the above contradictions in the statement of the police witnesses and the complainant, the seizure of identity card and preparation of memos at the spot are in doubt.
34 The complainant has stated in his cross examination that his Jija (brother in law) Shekhar Singh arrived at the spot. He made telephone call from the PCO to his brother at Ghaziabad at about 9.40 PM and then his brother reached to the police station. On the other hand, police witness Ct. Sanjeev (PW2) has contradicted the complainant by stating that no Page 21 S/V Rohtash etc. relative of the complainant arrived at the spot and that he did not notice any PCO near the spot.
35 Keeping in view the abovesaid glaring contradictions in the statements of the complainant and the three police officials regarding arrival of police gypsy with 23 police officials in it : manner of apprehension of accused Dharmender :
preparation of memos at the spot : arrival of brotherinlaw of the complainant (Jija) at the spot, it cannot be said with certainty that the incident as alleged by the complainant, had actually occurred with him on 8.10.2008.
36 The apprehension of accused Rohtash by the police officials in the presence of the complainant is also in doubt. The complainant in his examination in chief stated that accused Rohtash was apprehended by the police on 9.10.2008 from his house. In his crossexamination by the Ld. APP, the complainant changed his version and stated that the accused Rohtash was Page 22 S/V Rohtash etc. apprehended from near 13Block, Trilokpuri Church. In his cross examination conducted by the defence, complainant again changed his version and stated that the accused Rohtash was apprehended from Mother Dairy. On the other hand, the police witnesses have stated that the accused Rohtash was arrested from 13Block, Trilokpuri Church.
37 The manner of arrival of the complainant at the place of apprehension of the accused Rohtash and the time of his apprehension is also in doubt. The complainant during cross examination conducted by the learned APP, has stated that when on 9.10.2008 he had gone to Mother Dairy due to some work, there he was informed by a person that one person was apprehended by the police and then he reached there and identified the accused Rohtash. In his crossexamination conducted by the defence, at one place the complainant has stated that on 9.10.2008 he had not gone to his office. He had Page 23 S/V Rohtash etc. gone to the police station at about 8.30/9.00 AM and remained there till 12 noon/1.00 PM. In the same crossexamination, the complainant has stated that the accused Rohtash was apprehended by the police at 9.30/10.00 AM from the mother dairy and that he was present at the time of apprehension of the accused. The statement of the complainant is inconsistent with regard to the timing of apprehension of the accused Rohtash and the manner of his arrival at the place of apprehension of accused Rohtash, which makes the case of the prosecution doubtful. 38 The recovery of knife from the possession of accused Rohtash has also not been established by the prosecution beyond reasonable doubt. The complainant has stated in his examinationinchief that the knife was recovered from the pocket of the accused Rohtash. In the cross examination done by the learned APP, the complainant showed his ignorance about the recovery of knife from the bushes in the Page 24 S/V Rohtash etc. Safeda Park. Whereas in the crossexamination done by the defence, the complainant stated that the knife was shown to him in the police station and he had not accompanied the police at the time of recovery of knife. The police officials have made different statements by stating that the knife was got recovered by the accused Rohtash from Safeda Park and was lying open in the bushes. The mud was also lying there but the knife was not having any mud stain. The investigating officer has made the different statement by stating in his crossexamination that half portion of the knife was inside the sand while the other portion was visible.
39 The perusal of the statements of the complainant and the police officials show that their statements does not demonstrate credi bility to hold that the knife was got recovered from the possession or at the instance of accused Rohtash.
Page 25 S/V Rohtash etc. 40 The investigating officer of the case, ASI Anwar
Khan (PW5) has stated in his crossexamination that residential area was ahead of about 150200 meter from Safeda Park and there were no public persons available to him for their joining the proceedings of recovery of knife at the instance of accused Rohtash. Const.Sanjeev (PW2) has contradicted the statement of the investigating officer by stating in his crossexamination that the investigating officer made request to one or two public persons to join the investigation, but they did not come forward to join the proceedings.
41 It has been held by the Division Bench of Hon'ble High court in case reported in Chandarpal Vs. State (Reported in 1998 VI A.D. (Delhi) 177), that if independent witnesses are not associated in the recovery in pursuance of provisions of Section 27 of the Indian Evidence Act, then such recovery is not reliable. In another case reported in State Vs. Ramesh Page 26 S/V Rohtash etc. (Reported in 1989 II A.D. (Delhi) 42), the Hon'ble Division Bench has held that if public persons are not associated in the recovery then the provisions of Section 100 of Cr. PC are not followed and such recovery becomes doubtful. 42 I am of the considered view that the prosecution has not been able to prove beyond reasonable doubt the recovery of knife from the possession or at the instance of accused Rohtash. The recovery of knife from the possession or at the instance of accused Rohtash has not been established. 43 The inconsistent statements of the complainant are not believable to convict the accused persons for the offences for which they have been charged.
44 Keeping in view the shaky and inconsistent statement of the complainant which is unconvincing to believe him about the alleged incident of robbery with him and the unconvincing statements of the prosecution witnesses containing Page 27 S/V Rohtash etc. so many glaring contradictions, I am satisfied that the prosecution has failed to establish the charges against the accused persons for the offences punishable under Section 392 read with Section 34 IPC.
45 The accused persons have also been charged for the offence u/s 397 IPC. As per the case of the prosecution, one of the accused was having knife which was showed to the complainant and his belongings were robbed. The complainant has nowhere stated that any injury from the said knife was inflicted upon him. In this regard, the Hon'ble Punjab and Haryana High Court has held in the case titled Hanif Ali and Another Vs. The State of Haryana (Reported in 2008 (4) RCR (Criminal) 261) that the offence does not fall within the ambit of Section 397 IPC, as one of the essential ingredients of an offence to bring the case within the purview of the said Section is that the accused in the process of robbery must have used deadly Page 28 S/V Rohtash etc. weapon for causing grievous hurt or attempted to cause death or grievous hurt. In that case also, the accused had not used the deadly weapons as they did not make any attempt to cause any death or grievous hurt. In the present case also admittedly, there is no allegation of causing any grievous hurt or attempt to cause death of the complainant has been levelled against the accused persons. As per the statement of the complainant, the accused persons had not used the weapon i.e. knife to inflict any injury to him to cause grievous hurt or attempt to cause his death or attempted to cause cause grievous hurt.
46 Since, the incident of the present case is under shadow of clouds, therefore, the accused persons cannot be held liable to be convicted for the offence punishable under Section 397 IPC also. Both the accused persons are acquitted of the charges punishable under Section 392 read with Section 34 and also for the offence punishable under Section 397 IPC.
Page 29 S/V Rohtash etc. 47 Accused Dharmender has also been separately
charged for the offence punishable under Section 411 IPC for having in possession of identity card belonging to the complainant. Since, the incident of the present case has not been established by the prosecution and the recovery of identity card from the possession of accused Dharmender is in dispute, as has already been held by me above, therefore, accused Dharmender cannot be held liable to be convicted for the offence punishable under Section 411 IPC. He is acquitted for the said offence also. 48 Accused Rohtash has also been separately charged for the offence punishable under Section 25 of Arms Act for keeping in possession the button actuated knife without any licence and in contravention of the Notification, issued by Delhi Administration.
49 Since, the recovery of knife from the possession or at the instance of accused has been held to be in dispute, Page 30 S/V Rohtash etc. therefore, the accused Rohtash cannot be held guilty for the offence punishable under Section 25 of Arms Act. Otherwise, the prosecution has also not examined any witness to prove the notification issued by the Delhi Administration for keeping the knife without any permit or licence. In the absence of the said notification on record also, the accused cannot be convicted for the said offence. He is also acquitted of the said offence. 50 In view of the aforesaid discussion in detail, the prosecution has failed to prove any of the charges against the two accused. The two accused, namely, Rohtash and Dharmender are acquitted of the charges framed against them. 51 The Jail Superintendent be informed to release the two accused immediately, if not wanted in any other case. 52 File be consigned to the record room.
Announced in the open Court ( P.S. TEJI )
Dated: 1.9.2009 District JudgeVI (East) cum
ASJ: KKD Courts : Delhi