Delhi District Court
Cr. Case/6700/2018 on 24 January, 2023
IN THE COURT OF MS. RUBY NEERAJ KUMAR, ACMM, WEST, TIS HAZARI COURTS, DELHI State v. Mohd. Arif FIR No. 423/2016 u/s 392/397/411/34 IPC PS: Ranjit Nagar Unique Case I.D No. DLWT02-012495-2018 JUDGMENT
Serial No. of the case 6700/2018
Date of commission of offence 28.10.2016
Date of institution of case 27.01.2017
Name of the complainant Sh. Sunil Kumar
S/o Ram Lakhan
Name of Accused, parentage Mohd. Arif
& Address S/o Mohd. Habib
R/o Jhuggi No.8/29, Tulsi Nagar,
Inderlok, Delhi
Offence complained Under section 392/34/411 IPC
Plea of Accused Pleaded not guilty
Date of Arguments 24.01.2023
Final Order Acquitted
Date of Judgment 24.01.2023
BRIEF FACTS
1. Brief facts of the case as enunciated by the prosecution are that on 28.10.2016 at about 03:00 pm at Satya Park, Naraina Road, Delhi, within the jurisdiction of PS Ranjit Nagar, accused Mohd. Arif alongwith co-accused Firoz & Arun FIR No. 423/2016 State v. Mohd. Arif PS: Ranjit Nagar Page 1 of 10 (since not apprehended), in furtherance of common intention, committed robbery of one mobile phone make ITEL (black colour), purse containing SBI Card, Mother Dairy Card, Aadhar Card, Photograph, phone number diary, cash amount of Rs.430/- and gold locket belonging to Complainant Sunil Kumar (since dropped from the list of witnesses being untraceable) and while doing so, threatened the Complainant with a blade. Allegedly, accused was apprehended by the Complainant at the spot itself, with the aid of public persons and the above mentioned stolen mobile phone was recovered from his possession. It is further the case of the prosecution that on receiving DD No.18-A dated 28.10.2016 regarding the alleged incident, PW-1 Ct. Rakesh Kumar alongwith PW-2 ASI Satpal reached at the spot wherein, PW-2 recorded the statement of Complainant, prepared rukka on the basis of the same, which is Ex.PW-2/A and handed it over to PW-1 Ct. Rakesh Kumar for registration of FIR. On the basis of the rukka, present case FIR i.e. Ex. A-1 was registered under section 392/397/411/34 of Indian Penal Code (herein after referred to as 'IPC'). It is the case of the prosecution that further investigation of the case was marked to PW-3/IO Inspector Nishant Dahiya, who reached at the spot alongwith PW-1 and seized the recovered mobile phone vide seizure memo Ex.PW- 2/B, arrested the accused vide arrest memo Ex.PW-2/C and conducted his personal search vide personal search memo Ex.PW-2/D. It is further the case of the prosecution that PW-3/IO prepared Site Plan at the instance of the Complainant, which is Ex.PW-3/A, recorded the disclosure statement of the accused, which is Ex.PW-3/B and conducted further investigation.
FIR No. 423/2016 State v. Mohd. Arif PS: Ranjit Nagar Page 2 of 102. After completion of investigation, chargesheet was filed in the court for offence u/s 392/397/411/34 IPC. Cognizance of the offence was taken and copy of chargesheet was supplied to the accused in compliance of section 207, Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C'). Subsequent thereto, case was committed to the Court of Ld. Sessions vide order dated 13.02.2017 as the offence u/s 397 IPC is exclusively triable by the Ld. Sessions Court.
3. Arguments on charge were heard by the Ld. Sessions Court and vide order dated 02.11.2017, accused was discharged for offence u/s 397 IPC but charge for offence under section 392/34 & alternatively for offence u/s 411 IPC was framed against the accused by Ms. Navita Kumari Bagha, the then Ld. ASJ-04, West, Dehli. The accusation was read over and explained to the accused to which he pleaded not guilty and claimed trial. Subsequent thereto, vide order dated 24.08.2018, passed by the Ld. Sessions Court, present case was remanded back to this Court with observations that the offence u/s 392/411 IPC is triable by the Magisterial Court.
4. It is pertinent to mention herein that during the course of trial, Complainant Sunil Kumar remained untraceable. Even the process sent to him through DCP concerned was received back unserved. Consequently, vide order dated 14.12.2022, he was dropped from the list of witnesses.
FIR No. 423/2016 State v. Mohd. Arif PS: Ranjit Nagar Page 3 of 10EVIDENCE RECORDED DURING TRIAL
5. The prosecution has examined three witnesses to substantiate the allegations leveled against the accused.
6. PW-1 Constable Rakesh Kumar is a formal witness. He had joined the investigation of the instant case with the Investigating Officer. He has deposed that on 28.10.2016, on receiving DD No. 18-A, he reached at the place of alleged incident alongwith PW-2 ASI Satpal and met the Complainant. He has further deposed that PW-2 recorded the statement of the Complainant, prepared rukka on the basis of the same and handed it over to him. As deposed, PW-1 got the present case FIR registered through Duty Officer and came back at the spot with PW-3/IO Inspector Nishant Dahiya, who took over the investigation of the present case.
7. PW-2 ASI Satpal is the 1st Investigating Officer of the present case. He has deposed that on the date of alleged incident, on receiving DD no. 18-A, he reached at the spot alongwith PW-1, recorded the statement of the Complainant, prepared rukka, which is Ex. PW-2/A and got the present case FIR registered through PW-1. He has further deposed that after the registration of FIR, PW-3 Inspector Nishant Dahiya reached at the spot with PW-1 and he seized the case property i.e. mobile phone vide seizure memo Ex.PW-2/B, arrested the accused vide arrest memo Ex.PW-2/C and conducted personal search of the accused vide personal search memo Ex. PW-2/D. FIR No. 423/2016 State v. Mohd. Arif PS: Ranjit Nagar Page 4 of 10
8. PW-3 Inspector Nishant Dahiya is the second Investigating Officer of the case. He has deposed on the similar lines as PW-1 & PW-2. He has deposed that he had also prepared the site plan, which is Ex. PW-3/A at the instance of the Complainant and recorded the disclosure statement of the accused, which is Ex. PW-3/B.
9. It is pertinent to mention herein that vide separate statement recorded on 31.10.2022, in accordance with the provisions of Section 294 of Cr.P.C, accused admitted the registration of present case FIR no.423/16 dated 28.10.2016 at PS Ranjit Nagar, which is Ex. A-1 & Certificate under section 65-B of Indian Evidence Act, which is Ex. A-2. In view of the admission made, Duty Officer ASI Naresh Prasad was dropped from the list of witnesses.
10. PE was closed on 14.12.2022. Statement of accused under section 313 r/w 281 Cr. P.C was recorded on 12.01.2023 wherein, all the incriminating evidence were put to the accused. In his statement recorded under section 313 r/w 281 Cr.P.C, accused has stated that he has been falsely implicated in the present case and nothing was recovered from his possession. Accused submitted that he does not wish to lead defence evidence & therefore, matter was straightaway fixed for final arguments.
11. I have given thoughtful consideration to the submissions made by the Ld. Legal Aid Counsel for the accused as well as Ld. APP for the State and carefully perused the record.
FIR No. 423/2016 State v. Mohd. Arif PS: Ranjit Nagar Page 5 of 10ARGUMENTS ADDRESSED
12. It has been submitted by Ld. Legal Aid Counsel for the accused that the Complainant remained untraceable during the trial and therefore, he was dropped from the list of witnesses. She has argued that there is no other eyewitness who, can prove the allegations qua offence under section 392 IPC levelled against the accused and in the absence of the testimony of the Complainant, prosecution has miserably failed to prove that the case property alleged to have been recovered from the possession of the accused is a stolen property within the purview of section 410 IPC and thus, the accused may be acquitted for the offence alleged.
13. Ld. APP for the State has not controverted the arguments advanced by Ld. Legal Aid Counsel for the accused.
BRIEF REASONS FOR THE DECISION
14. In the instant case accused has been charged for offence under section 392/34/411 IPC. It would be apposite to reproduce the said provisions of law. Section 392 IPC provides punishment for committing robbery. Further, offence of 'robbery' has been defined under section 390 IPC as under: -
"390. Robbery.- In all robbery there is either theft or extortion.
When theft is robbery.-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 theft, the offender, for the end, FIR No. 423/2016 State v. Mohd. Arif PS: Ranjit Nagar Page 6 of 10 voluntarily causes or attempts to cause to any person death or hurt wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.- Extortion is "robbery" if the offender at the time of committing 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, of 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. Explanation.-The offender is said to be present if he is sufficiently near put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint."
15. Further section 411 IPC provides that, "Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
16. Stolen property has been defined under section 410 IPC as "a property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as "stolen property", whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without India. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property."
FIR No. 423/2016 State v. Mohd. Arif PS: Ranjit Nagar Page 7 of 1017. As per the case put forward by the prosecution, Complainant Sunil Kumar was the only eyewitness of the commission of the alleged offence. The entire case of the prosecution to prove the commission of alleged offence by the accused, hinges upon the statement of the Complainant. Recording of testimony of the Complainant was pivotal for proving the prosecution's case. In every criminal trial, identity of the malefactor must be established by the prosecution beyond reasonable doubt. Prosecution must prove that the person facing the trial is the one who has committed the alleged offence and failure to do so would be sufficient to exonerate the accused. However, in the instant case, Complainant having been dropped from the list of witnesses being untraceable, prosecution has miserably failed to prove that the accused is the one who had committed the robbery.
18. Further, in order to bring home the guilt of the accused for the offence under section 411 IPC, the prosecution was required to prove that (1) the stolen property was in the possession of the accused, (2) some person other than the accused had possession of the property before the accused got possession of it, and (3) the accused had knowledge that the property was stolen property, as observed by the Hon'ble Supreme Court in case titled Trimbak v The State of Madhya Pradesh;AIR 1954 SC 39. However, in the facts and circumstances of the instant case, recovery of the robbed/stolen property alleged to have been made from the possession of the accused does not make out any offence as the prosecution has failed to prove that the said property belonged to the Complainant or it has been FIR No. 423/2016 State v. Mohd. Arif PS: Ranjit Nagar Page 8 of 10 stolen/robbed from his possession. In the absence of the testimony of the Complainant, prosecution has despondently failed to prove that the mobile phone alleged to have been recovered from the possession of the accused is a stolen property within the meaning of section 410 IPC. Consequently, charge for offence under section 411 IPC fails.
19. The three cardinal principles of Criminal Jurisprudence which a judge must adhere to while administering justice in criminal cases are that, firstly, the accused must be presumed to be innocent until he is proved to be guilty. Secondly, the onus to prove its case beyond all reasonable doubts lies affirmatively on the prosecution & the benefit of doubt, if any, must necessarily go in favour of the accused and thirdly, this onus of the prosecution never shifts. There are catena of rulings as to this principle of law that the burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the court cannot record a finding of the guilt of the accused. Prosecution must stand on its own legs and must prove the story told by it at the very first stage. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. The manner of occurrence alleged by the prosecution must be established beyond doubt before the accused can be convicted.
20. In order to bring home the guilt of the accused for alleged offence, testimony of Complainant Sunil Kumar was imperative. Thus, in the absence of any incriminating evidence against the accused on record and keeping in view the above discussed facts, circumstances and evidence adduced in the FIR No. 423/2016 State v. Mohd. Arif PS: Ranjit Nagar Page 9 of 10 instant case, this court is of the considered view that the prosecution has failed to prove its case beyond all reasonable doubts and bring home the guilt of the accused for offence under section 392/34/411 IPC.
21. In view thereof, accused Mohd. Arif S/o Mohd. Habib is hereby acquitted of the offence under section 392/34/411 IPC.
22. Bail bond/surety bond in the sum of Rs. 10,000/-, in terms of section 437-A Cr.P.C, has been furnished by the accused. Same is accepted for six months.
23. File be consigned to record room after due compliance.
RUBY Digitally signed
by RUBY
Announced in open court
NEERAJ NEERAJ KUMAR
Date: 2023.01.24
on this 24th day of January, 2023 KUMAR 16:41:31 +0530
(Ruby Neeraj Kumar)
ACMM/West/THC
FIR No. 423/2016 State v. Mohd. Arif PS: Ranjit Nagar Page 10 of 10