Delhi District Court
Suresh vs . Kumar Gupta on 11 October, 2019
IN THE COURT OF SH. SUESH KUMAR GUPTA
ADDITIONAL SESSIONS JUDGE04 & SPECIAL JUDGE (NDPS)
SOUTHEAST: SAKET COURTS: NEW DELHI
SC 214 of 2019
Digitally
State signed by
SURESH
SURESH KUMAR
Vs. KUMAR GUPTA
Date:
GUPTA 2019.10.11
16:55:38
1. Sunil @ Satty @ Gulshan Khan +0530
S/o Mehrav Singh @ Lt. Nanhe Khan
R/o B541, Navjeevan Camp
Govindpuri, New Delhi
2. Islam S/o Lt. Saleem @ Kaleem
R/o D355, Navjeevan Camp
Govindpuri, New Delhi
FIR No. 97/2019
PS : Govindpuri
U/S: 392/397/411/34 IPC
and Sec. 25/27/54/59 Arms Act
Instituted on : 09.05.2019
Committed on : 17.05.2019
Argued on : 09.10.2019
Decided on : 11.10.2019
JUDGMENT
1 The brief facts of the prosecution case are like this. On 17.3.2019, GD No. 101A was recorded on the basis of call received from PCR to the effect that a thief has been apprehended near MCD School, Okhla PhaseI, State v. Sunil @ Satty @ Gulshan Khan & Ors. SC No. 214 of 2019 Page No.1 / 13 New Delhi. GD No. 101A was handed over to HC Lomesh who alongwith Ct. Sanjay reached in front of Indira Kalyan Vihar, TKD Jungle Maa Anand Mai Marg where complainant Vikas met them and handed over one knife used by accused Sunil in commission of crime to HC Lomesh. He gave his written complaint with the allegations that on 17.3.2019 at 2pm he was going on foot on the footpath and reached towards jungle side of Tughlakabad where one person with bandage on his right foot called him by the signal of hand. He went near him. The person asked from him about the way to Govindpuri. He told him about the way by signal of hand. The person grappled with him and removed one mobile phone of make RedMi2 pro with SIM No. 8929477288 alongwith Rs. 700/ from his pocket . He objected to it upon which he took out one knife from under the belt and threatened to kill him. His two associates also came from the jungle and exhorted the person to kill him with knife. The person opened the buttondar knife. He raised an alarm. The person handed over the mobile phone to his associates who fled from the spot. The person was apprehended by him with the help of passersby. The person was beaten by passersby. Akshay, r/o of his colony, has informed the police on number 100. He snatched the knife from that person. PCR van reached on the spot. The person disclosed his name as Sunil State v. Sunil @ Satty @ Gulshan Khan & Ors. SC No. 214 of 2019 Page No.2 / 13 Mehraj. The names of the persons who fled from the spot with robbed articles were disclosed by Sunil Mehraj as Usman and Islam. He can identify them. Accused Sunil Mehraj was taken to hospital. The knife was handed over to the police. The khakha of knife was prepared. It was sealed in a pullanda with seal LK and taken into possession vide separate recovery memo. Police officials went to AIIMS Trauma Centre where accused Sunil was found admitted who was under treatment. Ct. Sanjay was left in the hospital. HC Lomesh came back to PS. Endorsement was made on the statement of the complainant upon which FIR was registered. The investigation was handed over to SI Devender Singh.
On 18.3.2019 accused Sunil was discharged from the hospital and arrested in this case. His disclosure statement was recorded. Fard nishandehi of place of occurrence was prepared.
2 On 18.3.2019 accused Islam was arrested from T Point, near Aggarwal Sweets, Okhla Estate Road, New Delhi on the basis of secret information. One mobile phone of make Red MiY2 of gold colour without SIM was recovered from his possession. There was photo of complainant on the screen on the mobile phone. Mobile phone was taken into possession. The accused was arrested. His disclosure statement was recorded. The accused State v. Sunil @ Satty @ Gulshan Khan & Ors. SC No. 214 of 2019 Page No.3 / 13 was produced for TIP but he refused to join TIP. The mobile phone was released to the rightful owner. Statements u/s 161 CrPC were recorded. No clue was found against coaccused Usman Charge sheet was prepared and filed in the Court for trial.
3 The accused have put their appearance. The copy of the challan and documents were supplied to them. The case was committed to the court of Sessions by Ld. MM vide order dated 17.05.2019.
4 After hearing, the charge under section 392/34 and 411 IPC was framed against the accused Islam where charge u/s 392/34 IPC, 397 IPC R/W section 25 Arms Act was framed against the accused Sunil @ Satty @ Gulshan Khan to which they pleaded not guilty and claimed trial. 5 The prosecution has examined 7 witnesses.
6 The accused have admitted FIR Ex. A1, Certificate U/s 65BIndian Evidence Act Ex. A2 regarding correctness of FIR, Endorsmeent Ex. A3, GD No. 101A Ex.A4, TIP proceedings Ex. A5 u/s 294 Cr.PC. Their joint statement to this effect is recorded. Prosecution Evidence is closed. The accused were examined under section 313 Cr.PC. Their defence is of denial simplicitor. However, no defence evidence has been led. 7 The prosecution has examined 7 witnesses. PW1 Vikas and PW2 State v. Sunil @ Satty @ Gulshan Khan & Ors. SC No. 214 of 2019 Page No.4 / 13 Akshay are main prosecution witnesses. PW6 & 7 have carried out the investigation of the case.
8 PW1 Vikas is the complainant as well as victim. He stated that in 2019 around 56 months back at 2pm he was pulling his rehri and reached at Tughlakabad Forest area where 23 persons came from behind and hold him tight. Someone took out Rs. 600/ and mobile phone of make Red Mi Y2 with SIM No. 8929477288 from his pocket on the point of some pointed article like knife. They pushed him from back side and fled from the spot. He raised an alarm which attracted public persons. Someone from public called the police. Police recorded his statement Ex. PW1/A. He does not know anything else. He was informed later on by police that his phone has been recovered which was taken on superdari. He has brought the mobile phone Ex. P1 in the court. Ex. P2 to P4 are photographs of the mobile phone. He has not seen the robbers/accused on the spot as they had come from behind. He was declared hostile and cross examined at length by the prosecution. During cross examined by the Ld. Addl. PP for the State the suggestion is denied that one of the accused, who robed him, was apprehended on the spot with the help of passerby or that the accused apprehended on the spot threatened him with knife or that he has snatched the knife from that person and handed over State v. Sunil @ Satty @ Gulshan Khan & Ors. SC No. 214 of 2019 Page No.5 / 13 the same to the police. The suggestion is denied that he has told to police in his statement Ex. PW1/A that one person was wearing jeans who was having bandage in his right leg and asked from about the way to Govindpuri or that the person has forcibly removed Rs. 700/ and mobile phone from his pocket or that the knife was shown to him and he has threatened with knife or that two more associates of that person came on the spot to whom robed articles were handed over or that he with the help of passersby apprehended one of them on the spot and told to the police that the person caught by him has threatened him with knife or that complaint is in his handwriting or that he has read the contents of the complaint and thereafter signed it or that sketch of the knife was prepared in his presence which was sealed in a pullanda with seal LK and seized vide Fard Ex.PW1/B. The accused are shown to the witness who had failed to identify them. He is confronted with portion X to X1 of his statement Ex. PW1/A and portion A to A1 of his statement recorded u/s 161 CrPC where it is so recorded. The suggestion is denied that he has been won over by the accused that is why he has not identified them. He cannot identify the knife if shown to him. No crossexamination was done by accused though opportunity was given.
State v. Sunil @ Satty @ Gulshan Khan & Ors. SC No. 214 of 2019 Page No.6 / 13 9 PW2 Arjun stated that he does not remember the date and month of incident but it was in the year 2019. He was strolling on the road side near MCD School, Park, Okhla PhaseI, New Delhi. He saw a crowd. One person has called the police. He was declared hostile and cross examined at length by the prosecution. During cross examined by the Ld. Addl. PP for the State he stated that the mobile phone of Vikas was snatched who was present there. Vikas did not tell him as to who has snatched his phone. He did not see any knife on the spot. Vikas did not handover knife to the police in his presence. He has denied to have given portion A to A1 of his statement Mark B to police. No crossexamination was done by the accused though opportunity was given.
10 PW3 Jogesh Patiraj is father of the complainant. He has taken the mobile phone on superdari by executing superdarinama Ex. PW3/A. The panchnama Ex. PW3/B bears his signature. Ex. P2 to P4 are the photographs of Ex. P1.
11 PW4 Ravinder Kumar ACP Command Room, CPCR has handed over PCR form Ex. PW4/A to the IO.
12 PW5 Ramesh has proved notification Ex.PW5/A issued by Home State v. Sunil @ Satty @ Gulshan Khan & Ors. SC No. 214 of 2019 Page No.7 / 13 Department, Govt. of NCT of Delhi.
13 PW7 HC Lomesh stated that on 17.3.2019 GD No. 101A was handed over to him upon which he alongwith Ct. Sanjay went to Jungle side of Tughlakabad Forest, Maa Anand Mai Marg, in front of Indira Kalyan Vihar, New Delhi where complainant Vikas met him. Several persons were present there. Vikas has handed over one buttondar knife to him. Vikas gave a written complaint Ex. PW1/A to him. The sketch of knife Ex. PW1/C was prepared. The knife was sealed in a pullanda with seal LK and taken into possession vide memo Ex. PW1/B. He came to know that accused Sunil, who was caught and thrashed by public persons, has been shifted to AIIMS Trauma Centre by PCR van. He alongwith Ct. Sanjay went to hospital where accused Sunil @ Satty was found admitted. He came back to the spot by leaving Ct. Sanjay in hospital. He prepared tehrir Ex. PW7/A upon which FIR was registered. Investigation was handed over to SI Devender Singh to whom documents alongwith case property were handed over. He alongwith IO came to the spot where complainant was called and site plan was prepared at the instance of the complainant. He has identified accused Sunil @ Satty and knife Ex. P5.
14 PW6 SI Devender stated that on 17.3.2019 investigation of the State v. Sunil @ Satty @ Gulshan Khan & Ors. SC No. 214 of 2019 Page No.8 / 13 case was handed over to him. He alongwith Ct. Umesh and Ct. Sanjay went to the spot where no eye witness was present. He called the complainant from the number given by the caller. The complainant alongwith his friend Akshay reached on the spot. Site plan Ex. PW6/A was prepared at the instance of the complainant. They went to AIIMS Trauma Centre where accused Sunil @ Satty was admitted. His MLC was collected. He came back to PS and showed various dossiers of suspects to the complainant who identified Islam after seeing his photograph. Accused Sunil was discharged from hospital who was arrested. His personal search and arrest memos Ex. PW6/B and C were prepared. The disclosure statement Ex. PW6/D was prepared. The pointing out memo Ex. PW6/E of place of occurrence was preapred at the instance of the accused.
15 On the same day accused Islam was arrested from T point near Aggarwal Sweets, Okhla Estate Road. One mobile phone of Red Me Y2 without SIM was recovered from his possession which was seized vide memo Ex. PW6/X. The accused was arrested whose personal search and arrest memos Ex. PW6/ F and G were prepared. The disclosure statement Ex. PW6/H was recorded. The pointing out memo Ex. PW6/I of place of occurrence was prepared at the instance of the accused. The accused was put State v. Sunil @ Satty @ Gulshan Khan & Ors. SC No. 214 of 2019 Page No.9 / 13 to TIP who has refused to join TIP. Statements u/s 161 CrPC were recorded. He has identified the accused and mobile phone Ex. P1. During cross examination he stated that no independent witness from public was joined at the time of recovery of mobile phone from accused Islam. The suggestion is denied that complainant and Akshay did not tell about identity of accused/robbers or that the names of accused were inserted in order to solve the case.
16 Ld. Addl.PP for the State submitted that accused are the actual offenders. He further submitted that accused Sunil @ Satty @ Gulshan Khan was apprehended on the spot and thrashed by the public persons who was taken to hospital by PCR van where he was medically examined. He further submitted that robbed mobile phone has been recovered from the possession of accused Islam which shows that accused have committed the offence in question.
17 Ld. Defence Counsel submitted that PW1 & 2 are the material witnesses who have not identified the accused. She further submitted that there is no evidence on record against the accused Sunil @ Satty @ Gulshan Khan. She further submitted that recovery of mobile phone has been planted by the police in order to implicate the accused Islam. State v. Sunil @ Satty @ Gulshan Khan & Ors. SC No. 214 of 2019 Page No.10 / 13 18 Heard and perused the record.
19 The prosecution has examined 7 witnesses in order to prove its case. PW1 is the complainant and victim. PW2 is an eye witness. PW3 has taken mobile phone on superdari. PW6 & 7 have carried out investigation of this case.
20 The testimony of PW1 shows that three boys caught him from behind and robbed him of his mobile phone of make Red Mi Y2 with SIM NO. 8929477288 and Rs. 600/ by pointing out one knife like object. He has been informed by the police about recovery of mobile phone Ex. P1 which was taken on superdari.
21 His testimony nowhere shows that accused have caught him from behind and robbed him of his above stated articles on the point of knife like object. His testimony nowhere shows that he has apprehended and snatched the knife from accused Sunil @ Satty @ Gulshan Khan and handed over the to PW7. He was declared hostile and cross examined by the prosecution but the prosecution has failed to bring out any incriminating material against the accused during the course of crossexamination. He has not supported the case of the prosecution on the material aspect.
22 PW2 did not support the case of the prosecution. He was declared State v. Sunil @ Satty @ Gulshan Khan & Ors. SC No. 214 of 2019 Page No.11 / 13 hostile and cross examined by the prosecution but the prosecution has failed to bring out any incriminating material against the accused during the course of crossexamination.
23 No evidence has come on record that PW1 has snatched the knife from accused Sunil @ Satty @ Gulshan Khan and handed over the same to PW7. The prosecution cannot draw any support from the testimony of PW7. 24 The testimony of PW6 shows that on 18.3.2017 accused Islam was apprehended from T Point, near Aggarwal Sweets, Okha Estate Road. One mobile phone of make Red Mi Y2 without SIM was recovered from his possession. The mobile phone in question has been identified by PW1 and taken on superdari by PW3.
25 No question or suggestion is put to PW6 that accused Islam was not found in possession of robbed mobile phone. His testimony on this material point has remained unshaken. The recovery of the robbed mobile phone of PW1 has been duly proved from possession of accused Islam. The accused has failed to give any explanation how he came in to possession of the said mobile phone. There is no motive on part of PW6 to plant the mobile phone on accused Islam as there is no evidence of enmity on record. The recovery of robbed mobile phone has been duly proved qua accused Islam. State v. Sunil @ Satty @ Gulshan Khan & Ors. SC No. 214 of 2019 Page No.12 / 13 26 The evidence on the file does not connect the accused Sunil @ Satty @ Gulshan Khan with the commission of the offence in question. 27 The evidence on the file does not show that accused Islam has robbed the complanant PW1. The entire evidence on the file shows that robbed mobile phone has been recovered from his possession. 28 Hence, in the light of my aforesaid discussion, I have no hesitation in hold that prosecution has failed to prove its case beyond shadow of reasonable doubt against the accused Sunil @ Satty @ Gulshan Khan and he is acquitted of the offence charged.
29 The prosecution has failed to prove the case against accused Islam beyond shadow of doubt for the offence u/s 392/34 IPC and accordingly he is acquitted of the offence u/s 392/34 IPC. However, the prosecution has proved its case against him u/s 411 IPC and accordingly he is convicted for the said offence.
30 Let the file to come up for quantum of sentence qua accused Islam.
Announced in the open court on 11th October, 2019 (SURESH KUMAR GUPTA) ASJ04 & Spl. Judge (NDPS) SouthEast District Saket Courts, New Delhi :11.10.2019 State v. Sunil @ Satty @ Gulshan Khan & Ors. SC No. 214 of 2019 Page No.13 / 13