Delhi District Court
Ca No. 217/17 "State vs . Sonu @ Mulla & Anr " on 21 December, 2017
CA No. 217/17 "State Vs. Sonu @ Mulla & Anr "
IN THE COURT OF SH. GAUTAM MANAN, ASJ-
FAST TRACK COURT, SOUTH WEST, DWARKA
In the matter of:-
CA No. 217/17
FIR No. 473/2013
Under Section 392/34 IPC
PS Bindapur
State ............ Appellant
Versus
1. Sonu @ Mulla
S/o Sh. Munna Khan,
R/o B-501, JJ Collony, Hastal
Uttam Nagar, New Delhi
2. Yogdutt @ Kochan
S/o Sh. Pawan Kumar,
R/o A-459, JJ Collony, Hastal
Uttam Nagar, New Delhi .......... Respondents
Date of institution of Appeal : 22.08.2017
Date on which judgment reserved : 14.12.2017
Date on which judgment pronounced : 21.12.2017
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CA No. 217/17 "State Vs. Sonu @ Mulla & Anr "
ORDER
1. Present Criminal Appeal is preferred by State against judgment of acquittal of accused persons (respondents) dated 17.05.2017 passed by Ld. Trial Court in case FIR No. 473/13, PS Bindapur, U/s 392/34 IPC.
2. FIR in question was registered on 01.10.2013 on complaint of Vipin Kumar (PW1) who alleged that on 30.09.2013 at about 11:45 pm he was walking towards his house. When he reached just ahead of Himalaya Sagar Restaurant suddenly somebody pressed his neck from behind and after turning around he saw two boys. Boy who pressed his neck told other to remove ring of complainant. The said boy forcibly removed his ring and two mobile phones from pocket. The boy who was holding his neck took purse from his back pocket in which Rs 400/-, his PAN, credit & debit card were there. Complainant alleged that both boys aged about 25-30 years to whom he could identify robbed his articles. After incident he went his house and came back at spot with his brother. From there he called 100 from mobile of his brother. Criminal Appeal Page 2 of 9
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3. Both respondents were under custody in some other case. They made disclosure statements thereby confessing of committing robbery in question. Respondents were arrested. During TIP proceedings, both were identified by complainant. Both accused persons were charge-sheeted to face trial for the offence U/s 392/411/34 IPC. Charge for offence punishable U/s 392/24 IPC was framed against them to which they pleaded not guilty and claimed trial.
4. Prosecution examined 11 witnesses including complainant, Doctor and police witnesses. Accused persons were examined u/s 313 Cr. P.C. wherein they denied their involvement in the robbery.
5. Ld. Trial Court reached to the conclusion that prosecution failed to establish its case against respondents beyond reasonable doubt and hence acquitted them vide its judgment dated 17.05.2017.
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6. Impugned order is assailed by State on the ground that Ld. Trial Court did not appreciate that there is sufficient evidence on record to hold respondents guilty. It is submitted that complainant in his testimony duly identified them and he explained that he saw them in the light available at spot. It is stated that Ld. Trial Court also failed to give credence to recovery of ring of complainant at the instance of respondent no.1 Sonu. It is stated that defence did not attribute any motive of false implication of respondents and hence Ld. Trial Court committed an error in recording an acquittal of respondents.
7. On behalf of respondents, it is submitted that Ld. Trial Court has correctly appreciated that complainant had no occasion to identify the offender at the time of incident. It is submitted that Ld. Trial Court has rightly acquitted the respondents.
8. I have heard the rival submissions and have gone through the record.
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9. Impugned judgment has been assailed mainly on two grounds, identification of respondents by complainant and recovery of gold ring. Let us deal with those two aspects.
10. Identification of respondents: It is submitted by State that complainant not only identified respondents in his testimony but identified them as offenders during TIP proceedings also. In order to appreciate assertions of State, let us examine what complainant has deposed in respect of identification of offenders during his cross-examination;
"I did not give any description of the accused as I could not see the same at the time of incident. ..."
11. In his complaint Ex PW1/A as well except for the approximate age of the offenders, complainant did not narrate any physical features of offenders. Complainant admits that he could not see accused persons at the time of incident and his complaint is silent about appearance of offenders. Criminal Appeal Page 5 of 9
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12. It is matter of record that incident took place on 30.09.2013 at about 11:45 pm whereas accused Yogdutt was arrested on 18.10.2013 and his disclosure was recorded wherein he allegedly confessed of having committed present offence along with co-accused Sonu. On 21.10.2013 Sonu @ Mulla was also arrested.
13. On 26.10.2013, both accused persons were identified by the complainant in TIP at Tihar Jail. Respondents were arrested much before TIP was conducted. They were arrested in some other cases. In police station their dossiers might have been prepared. As per testimony of complainant, he was called at the police station and it cannot be ruled out that respondents were shown to complainant in the PS itself. In these facts, identification of respondents in TIP proceedings is not of much significance. Thus, Ld Trial Court correctly arrived to the conclusion that identification of respondents by complainant in his testimony is doubtful.
14. Recovery of Gold Ring: As per case of prosecution robbed gold ring was recovered from house of accused Sonu @ Mulla at his instance.
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15. Complainant deposed that on 29.10.2013 he went with accused and police to house of accused Sonu @ Mulla from where he got recovered the gold ring from a bag. Deposition of PW7 Ct. Lokender & PW11 SI Shakti ( Investigating Officer) is also on similar lines.
16. No independent public person was joined to the alleged recovery from the house of Sonu @ Mulla. It is not explained that when raiding party reached at house of Sonu @ Mulla whom of his family members were present there. None of them were made or offered to join the recovery proceedings. No site plan of the house of the accused from whose house the alleged robbed ring was recovered was prepared by the IO.
17. As rightly pointed out by Ld Trial Court, complainant did not furnish any proof of ownership of the alleged robbed ring Ex. P-1. No identification mark of the robbed ring has been narrated by complainant in his complaint. As per DD No.7A (Ex. PW3/A), brother of complainant made call at No.100 and he alleged of robbing of two rings whereas complainant stated that it was only one ring. For want of any Criminal Appeal Page 7 of 9 CA No. 217/17 "State Vs. Sonu @ Mulla & Anr "
documentary ownership proof and specific identity mark of the ring thereof, it is doubtful that alleged recovered ring Ex. P-1 belongs to the complainant. Nonetheless, its recovery from the house of Sonu @ Mulla by not following the settled procedures, is also doubtful.
18. It is settled law that the Appellate Court may only interfere in an appeal against acquittal when there are substantial and compelling reasons to do so [See Sheo Swarup Vs. King-Emperor, AIR 1934 PC 227 (2); M.G. Agarwal Vs. State of Maharashtra, AIR 1963 SC 200 (paragraph 16 and 17); Tota Singh and Anr. v. State of Punjab, AIR 1987 SC 108:
(1987) 2 SCC 529 (paragraph 6); State of Rajasthan v. Raja Ram, (2003) 8 SCC 180 (paragraph 7); Chandrappa v. State of Karnataka, (2007) 4 SCC 415 (paragraph 42); Ghurey Lal v.
State of U.P., (2008) 10 SCC 450 (paragraph 73); and Muralidhar @ Gidda Vs. State of Karnataka, (2014) 5 SCC 730 (paragraph 12)].
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19. In the light of aforesaid discussions, I am of the view that Ld Trial Court has rightly extended benefit of doubt to respondents. No illegality or infirmity is found in the judgment of the Trial Court warranting interference. Thus, present appeal is dismissed. TCR back along with copy of this order. File be consigned to record room.
Announced in the open court on 21st December, 2017.
(Gautam Manan) ASJ- Fast Track Court, South-West Dwarka Courts, New Delhi Criminal Appeal Page 9 of 9