Delhi District Court
State vs . Anil Kumar & Ors. on 15 July, 2022
IN THE COURT OF MS. ALKA SINGH
METROPOLITAN MAGISTRATE-08
(SOUTH-WEST), DWARKA COURTS, DELHI
DLSW020106162019
IN THE MATTER OF :
State Vs. Anil Kumar & Ors.
FIR No. 1117/2003
PS : Uttam Nagar
U/s 392/34 IPC
Date of Institution : 06.02.2004
Date of Judgment : 15.07.2022
JUDGMENT
1. Serial No. of the case : 7906/2019
2. Name of the Complainant : Sh. Yashpal S/o Sh. Balbir
Singh, R/o B-24A, Gali No.17
Bharat Vihar, Rajapuri, New
Delhi.
3. Date of commission of offence : 07.12.2003
4. Name of accused person :1) Anil Kumar S/o Hari Ram R/o D-1, W-45, Sultanpuri, Delhi.
:2) Vicky Kumar S/o Balbir Singh, R/o D-33, Mahavir Enclave-III, Delhi.
FIR No.1117/2003 PS Uttam Nagar Judgment dated 15.07.2022 Page No. 1 of 12 :3) Sunil @ Sannu S/o Jagdish R/o F-44, Gali no.81, Mahavir Enclave, New Delhi (declared absconder on 11.05.2022)
5. Offence charged : U/s 392/34 IPC
6. Plea of accused persons : Not guilty
7. Final Order : CONVICTION BRIEF REASONS FOR ORDER:
1. The accused were chargesheeted for committing offences punishable under Section 392/34 of Indian Penal Code ( hereinafter referred as "IPC").
2. It has been alleged by the prosecution that on 07.12.2003 at about 10.00 pm near Secondary School, DDA Flats, Bindapur Delhi, they all committed robbery against the complainant by snatching from him the cash amount of Rs.8400/- and his voter ID Card.
3. After conclusion of investigation, the present chargesheet was filed against the accused Section 392/34 IPC.
4. On receipt of chargesheet, cognizance of offence was taken and accused was summoned to face trial. Copy of the chargesheet alongwith all annexures was supplied to the accused in terms of Section 207 Cr.P.C.
5. After giving opportunity to state as well as accused for making State Vs. Anil Kumar & Ors.
FIR No.1117/2003 PS Uttam Nagar Judgment dated 15.07.2022 Page No. 2 of 12 submissions on charge, a charge for offence Section 392/34 IPC was framed against the accused on 13.09.2007, to which they pleaded not guilty and claimed trial.
6. Prosecution examined nine witnesses to prove its case.
7. PW1 ASI Ramesh Chand was only a formal witness, who had registered the FIR on the basis of rukka. FIR was Ex.PW1/A and his endorsement on rukka was Ex. PW1/B.
8. As PW2 complainant Yashpal was examined, who stated that he is a milkman by profession and on 07.12.2003 at about 10.00-10.30pm when he was on his way back on his bicycle after supplying milk to his customers and after having collected from them his payments of Rs.8400/-. He stated that when he reached near senior secondary school, Bindapur, one motorcycle make Victor came from the front side and two boys aged about 20 to 22 years were riding it. They stopped the motorcycle in front of his bicycle and started beating him and one of the accused snatched the cash amount of Rs.8400/- and his votor ID card from the left pocket of his pant and fled away. He stated that in the meanwhile brother of one Madan arrived there and he told him the entire incident and they left in the search of the accused persons on his scooter. He further stated that the accused persons were found on street no.81 where they were apprehended with the help of public persons. He stated that the name of the accused persons were revealed to be Anil and Vicky and he could not recollect the name of third accused (all the accused were present in the court and were State Vs. Anil Kumar & Ors.
FIR No.1117/2003 PS Uttam Nagar Judgment dated 15.07.2022 Page No. 3 of 12 correctly identified). He further deposed that some public person called at 100 number and the PCR arrived whereafter, the accused persons were handed over to the police officials. His statement Ex. PW2/A was recorded. It was also testified by him that the accused who had snatched Rs.8400/- and his votar ID Card had given the same to another accused called Sunno, who had already fled away. The witness also identified the accused Sunno who was present in the court. Arrest memos of the accused persons were Ex. PW2/B and Ex. PW2/C. In his cross examination, he deposed that at the time of the incident there was no source of light and the said cash amount of Rs.8400/- were in the denomination Rs.500/-, Rs.100/- and Rs.50/- which fact he did not mention in his statement. It was further stated that many persons had gathered at the spot when the accused persons were apprehended, some of whom had informed the police and the police arrived after about 30 minutes to 1 hour and took all of them in the PCR Van to Dabri PS and from there to PS Uttam Nagar. He also stated that he and another public persons have thrashed the accused persons and that he did not receive any external injury but that he was beaten up by the accused persons. He also stated that he was not medically examined. It was also stated that in his presence the police official of PCR Van did not record the statement of any public person and that his statement was also recorded at police station. It was also stated that statement of Raghubir i.e. brother of Madan was also not recorded in his presence and that he signed various papers which he was asked to sign by the police persons, after reading them. It was also State Vs. Anil Kumar & Ors.
FIR No.1117/2003 PS Uttam Nagar Judgment dated 15.07.2022 Page No. 4 of 12 deposed by him that he was taken to the Jail for identification of accused persons but neither the accused were shown to him nor their photographs. He then denied all the adverse suggestions of the counsel for accused.
9. As PW3 Raghubir @ Bobby was examined who stated that he does not remember the exact date of incident but the same happened 3- 3 ½ years ago when he was riding on his scooter and reached DDA Flats Bindapur where he met milkman Yashpal, his acquaintance, who told him about the entire incident of loot. He also stated that the bicycle of the Yashpal was lying on the road and after parking it they left in the search of accused persons. That accused persons were found in the gali near DDA Flats on motorcycle whereby they were all apprehended. He also correctly identified all the accused persons. He also stated that he already knew the name of accused Sunil @ Sunno, as he was already familiar with him being his neighbor. He was not cross examined by the defence counsel despite opportunity.
10. As PW4 Ct. Jaspal Singh was examined, who stated that on 08.12.2003, he received DD no.34 and reached at the spot i.e. Jeewan Park, Uttam Nagar with Ct. Satender and handed over the copy of the same to SI Tejpal. That thereafter, they all went to gali no.17, Bharat Vihar, Rajapuri Gali where SI Hari Kishan where the staff met them and they handed over the accused Vikram and Anil to them (correctly identified). He stated that tehrir was prepared by IO SI Tejpal which was given to him for registration of FIR. Accused Vicky was found in State Vs. Anil Kumar & Ors.
FIR No.1117/2003 PS Uttam Nagar Judgment dated 15.07.2022 Page No. 5 of 12 possession of one knife regarding which separate investigation was carried out. Thereafter, they reached at DDA Flats Bindapur, where the IO prepared the site plan and recorded the supplementary statement of complainant and thereafter they all came back to the PS where his statement was recorded by the IO. In his cross-examination, it was stated that no public witness was present when they reached Jeewan Park, Uttam Nagar. Thereafter, he was questioned about the specific points of time when various investigation procedures were carried out. All the adverse suggestions of the defence counsel were denied by the witness.
11. As PW5 SI Hari Kishan was examined who stated that on 07.01.2003, he was posted at PS Dabri and on receiving DD no.39A he and Ct. Dinesh reached at gali no.17, Bharat Vihar, Rajapuri where complainant Yashpal and some other public persons were present with accused Vicky and Anil ( present in the court and correctly identified) and accused Vikram @ Vicky was handed over to him by the complainant as he was found in the possession of button actuated knife. Thereafter, the statement of the complainant was recorded and he informed the duty officer of PS Uttam Nagar vide DD no.34 upon which SI Tejpal and two Constables arrived there and accused persons were handed over to them. He stated that his statement was recorded by the IO. In his cross examination he stated that he did not record the statement of any public witness except the complainant at 12.00 midnight as the matter pertained to the PS Uttam Nagar. He also stated that no bicycle was found at the spot. He also denied all the suggestion State Vs. Anil Kumar & Ors.
FIR No.1117/2003 PS Uttam Nagar Judgment dated 15.07.2022 Page No. 6 of 12 of defence counsel having adverse inferences.
12. As PW6 Ct. Dinesh Kumar was examined who had accompanied SI Hari Kishan while leaving for the place of incident thus, he also deposed and was also cross examined on the similar lines which are not being reproduced here.
13. As PW7 HC Mahavir Singh was examined who stated on 08.12.2003, he recorded the DD no.34 which was Ex. PW7/A (OSR) and in his cross examination he affirmed the suggestion of the defence counsel that there is not signature of the IO against DD no.34.
14. As PW8 Sh. Jai Karan, LDC, Transport Department, Rohini Sec-16 was examined who brought the summoned record i.e. RC of vehicle no.DL8SW-4229 registered in the name of Kasturi. The attested copy of which was Ex. PW8/A. He was not cross examined despite opportunity.
15. As PW9 IO Insp Tejpal was examined who stated that on 08.12.2003, Ct. Jaspal handed over to me DD no.34 upon which he, Ct. Jaspal and Ct. Satender reached at Rajapuri and for the later part he also deposed the same facts as was deposed by PW4. Additionally, it was also stated by him that the personal search of the accused Anil Kumar was conducted by him and accused Vikcy was also arrested in another FIR no.933/2003 PS Dabri U/s 25 Arms Act. He stated that accused Vicky was formally arrested on 13.12.2003 vide memo Ex. PW9/C and his disclosure statement Ex. PW9/D was recorded and that State Vs. Anil Kumar & Ors.
FIR No.1117/2003 PS Uttam Nagar Judgment dated 15.07.2022 Page No. 7 of 12 accused Anil was arrested vide arrest memo Ex. PW9/E on 20.02.2004. It was also averred by him that accused Sunil refused to participate in TIP proceedings conducted on 27.02.2004, after which his one day PC remand was obtained and in the course of investigation, on 02.03.2004 at the instance of accused Sunil voter ID card of the complainant Yashpal was recovered from his house Ex. PW9/F and his disclosure statement Ex. PW9/G was recorded. He further elaborated that notice U/s 133 MV Act Ex. PW9/H was also served upon Smt. Kasturi who was the owner of vehicle no. DL8SW- 4229 TVS Victor which was used in the offence. He also correctly identified accused Anil and Vicky present in the court. In his cross- examination he was generally questioned about the time at which he left for and arrived at the spot and about the distance from the PS to the place of occurrence. He also affirmed the fact that voter ID card of the complainant was recovered from the house of accused and no public witness were made to join the investigation as despite his request all of them refused. All the adverse suggestion of the defence counsel were denied.
16. Since, no other witness was examined by prosecution, hence, the PE was closed and statements of accused were recorded under Section 313 Cr.P.C. to allow them to explain the incriminating circumstances appearing in evidences against them wherein both the accused denied the allegations levelled against them and stated that complainant has filed a false complaint and that they are innocent and have been falsely implicated in the present case. State Vs. Anil Kumar & Ors.
FIR No.1117/2003 PS Uttam Nagar Judgment dated 15.07.2022 Page No. 8 of 12
17. Since the accused chose not to lead any evidence in their defence, therefore, DE was closed and the matter was adjourned for final arguments.
18. Final arguments were thereafter heard on behalf of state as well as the accused.
19. It is submitted by Ld. APP for State that the accused persons were apprehended by the complainant himself with the help of other public persons and his associate and the name of the third accused Sunil was disclosed by PW3 Raghubir, who was already acquainted with him. Moreover, all the accused have been correctly identified by all the witnesses. He further argued that it was at the instance of accused Sunil only, that the voter ID of the complainant was recovered from his house.
20. Per contra, it was the arguments of Ld. defence counsel that the incident happened at 10.00 pm and it was clearly stated by PW2 that there was no source of light. Moreover, if the incident happened at 10.00 pm how come the accused persons were arrested between 10.00 pm to 11.00 pm. He also pointed out that there is no time mentioned in the arrest memo of accused Anil and that there is contradictions in the statement of police witnesses. The counsel also contended that only the voter ID card of the complainant was found at the residence of the Vicky and it does not seem probable that accused would have gone to his house just for putting the voter ID card of the complainant and then came back at the spot. It was also contended that the TVS Scooty State Vs. Anil Kumar & Ors.
FIR No.1117/2003 PS Uttam Nagar Judgment dated 15.07.2022 Page No. 9 of 12 which was stolen was also not found and there is no recovery from accused Anil. Further, he has not been involved previously in any criminal case nor were there any public witnesses when the alleged recovery was made.
21. I have carefully considered the submissions made on behalf of the parties and have perused the case file meticulously.
22. Now this court shall appreciate the evidences one by one in order to decide whether the prosecution has been successful in proving its case.
23. In the present case the identity of the accused persons is not in dispute and in fact as per the statement of complainant he himself apprehended all the accused with the assistance of PW Raghubir and other public persons. It has also come in the evidence of PW3 Raghubir that accused Sunil @ Sunno (now absconder) was his acquaintance. Moreover, both the witnesses clearly identified the accused Anil and Vicky in the course of their evidence. However, as per the testimony of PW2/ complainant, two persons have come on the motorcycle and forcefully took out his belongings and who were later on revealed to be Anil and Vicky. Further, as per him the accused who had snatched Rs.8400/- from him had given the said amount to another accused i.e. Sunil, who they called Sunno and who had already fled away from the spot with the looted amount, who was later on declared absconder pending the trial of the case.
FIR No.1117/2003 PS Uttam Nagar Judgment dated 15.07.2022 Page No. 10 of 12
24. In the present matter, the charge was framed u/s 392/34 IPC and the ingredients of offence of robbery is that theft is robbery when in order to commit the same or in attempt thereof, the offender voluntarily causes or attempt to cause death or hurt or wrongful restraint or fear of instant death or of instant hurt or of instant wrongful restraint. In the case at hand, there is no ambiguity regarding the ingredients of the offence having been successfully proved, when one looks at the testimonies of the witnesses, particularly, of the complainant who has been rather very pellucid while describing the entire sequence of events as to how he was stopped by the two motorcyclists while he was returning after collecting his payments and how he was beaten up by those two persons who snatched his collection of the day i.e., Rs. 8,400/- and also his Voter ID Card. He also has very categorically stated that the looted amount and his Voter ID card was then given to another accused namely Sunno, who was also identified by him in the court. Thus, neither the identity of the accused are in dispute nor the other facts such as the recovery of the Voter ID of the complainant from the house of Vicky at the instance of accused Sunil @ Sunno.
25. It is also not in dispute that accused Anil and Vicky were apprehended by the complainant himself with the help of PW-3. The arguments of the counsel that there are certain discrepancies vis-a-vis the timing of the arrest of the accused as they were arrested between 10:00 PM to 11:00 PM, whereas the incident itself was alleged to have happened around 10:00 PM to 10:30 PM, is not convincing enough to State Vs. Anil Kumar & Ors.
FIR No.1117/2003 PS Uttam Nagar Judgment dated 15.07.2022 Page No. 11 of 12 over shadow the prosecution case as no one can be expected to tell the exact time of any event particularly when it has happened around five years ago and infact only this much of inconsistency or incongruity cannot be held to be sufficient for exonerating the accused. Moreover, the court also can not turn a blind eyes to the fact that the witnesses have been very consistent throughout. It is also not the case of the defence that accused persons are otherwise have clean antecedents, as firstly they were found to be stolen scooty and one knife was also recovered from the possession of the accused Vikram @ Vicky regarding which a separate FIR was registered in the concerned police station.
26. Hence, in view of the aforesaid discussions and reasons, it can conclusively, be held that Prosecution has been successful in proving the guilt of the accused beyond reasonable doubts and therefore, the accused Anil Kumar S/o Hari Ram and Vicky Kumar S/o Balbir Singh are convicted for the offence u/s 392/34 IPC.
27. Ordered Accordingly.
Pronounced in open Court, on this Day of 15th July, 2022. This judgment consists of 12 signed pages.
(ALKA SINGH) Metropolitan Magistrate-08/South-West Dwarka Courts: New Delhi State Vs. Anil Kumar & Ors.
FIR No.1117/2003 PS Uttam Nagar Judgment dated 15.07.2022 Page No. 12 of 12