Delhi District Court
State vs Dev Kumar @ Deva on 25 September, 2014
IN THE COURT OF SH. TARUN YOGESH, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, SOUTH DISTRICT, SAKET COURTS
COMPLEX, NEW DELHI
State v/s Dev Kumar @ Deva
FIR No: 68/14
PS: Saket
U/s: 392 r/w 34 IPC
JUDGMENT
1. S. No. / ID No. of the Case : 02406R0077522014
2. Date of Commission of Offence : 05.02.2014
3. Date of institution of the case : 29.03.2014
4. Name of the complainant : Sh. Kuldeep Dhariwal
S/o Sh. Randhir Singh
R/o F69, Lado Sarai,
near DDA Flats, New Delhi.
5. Name of accused, parentage : Dev Kumar @ Deva
S/o Sh.BheroSingh(Jeevan Lal)
R/o H.No. 217, Subhash Nagar,
Abhohar, Distt. Fazilka,Punjab
6. Offence charged or proved : U/s 392 IPC
7. Plea of Accused : Pleaded Not Guilty.
FIR No: 68/14 PS Saket State Vs. Dev Kumar @ Deva Page 1 of 15
8. Final Order : Convicted
9. Date of Final Order : 25.09.2014
BRIEF REASONS FOR SUCH DECISION :
01. Accused Dev Kumar @ Deva S/o Sh. Bhero Singh (Jeevan Lal) has been charged U/s 392 r/w 34 IPC upon allegation of having robbed one mobile phone make Samsung GalaxyY with Airtel SIM No. 9958372737; one Samsung TabII Tablet with Vodafone SIM No. 9728242506 and purse containing Rs. 2000/ and ATM card of Central Bank from complainant Sh. Kuldeep Dhariwal.
02. Prosecution's case gathered form chargesheet reveals that information about 4 5 persons having assaulted and snatched some mobile phone was received at 12:20 AM (night) on 05.02.2014 which was recorded vide DD No. 4A in roznamcha register. Thereafter, SI Jagdish Kumar alongwith Ct. Gopal reached at the spot beside park near Saket Metro Station M.B. Road and met complainant Sh. Kuldeep Dhariwal. His complaint was recorded wherein complainant alleged to have been robbed by four persons who snatched his belongings viz. Samsung mobile phone, Samsung TabII Tablet and his purse containing Rs. 2,000/ cash and ATM card of Central Bank at about 12:05 AM (night) on footpath, near CISF FIR No: 68/14 PS Saket State Vs. Dev Kumar @ Deva Page 2 of 15 Camp, MB Road, Saket and fled away from spot after shoving him and assaulting him on his face with fists. Complainant was taken to AIIMS Trauma Center for medical examination and result of simple hurt was obtained upon his MLC No. 410713 dated 05.02.2014. SI Jagdish Kumar prepared tehrir for offence U/s 392 r/w 34 IPC which was sent to PS Saket through Ct. Gopal for registration of FIR and further investigation was marked to ASI Kuldeep.
03. During investigation, ASI Kuldeep (IO) prepared site plan at the instance of complainant and recorded statements of witnesses U/s 161 Cr.PC. On 12.02.2014, during patrolling duty, he alongwith HC Anil and Ct. Sandeep saw some boys roaming at night and tried to inquire from them, but they managed to flee, except accused Dev Kumar @ Deva @ Devesh who was apprehended by them and confessed to have robbed one pedestrian near Saket Metro Station alongwith his accomplices namely Sunny, Babloo and Raju on 05.02.2014. Accused was formally arrested and his personal search was conducted. Pointing out memo was prepared at his instance and accused was produced in court in muffled face for his test identification parade. Accused agreed to participate in test identification parade and was correctly identified by complainant before Ld. MM, Ms. Purva Sareen during FIR No: 68/14 PS Saket State Vs. Dev Kumar @ Deva Page 3 of 15 TIP on 15.02.2014. Thereafter, one day police custody of accused was obtained on 21.02.2014, but his accomplices could not be apprehended. Samsung mobile phone and Samsung TabII Tablet were put on surveillance and their 'Call Detail Record' (CDR) and Customer Application Form (CAF) were obtained, but they could not be recovered. Investigation of the case was again handed over to SI Jagdish who prepared chargesheet and filed it in court.
04. Cognizance of offence was taken on 29.03.2014 and after compliance of section 207 Cr.PC, accused Dev Kumar @ Deva was charged U/s 392 r/w 34 IPC on 03.04.2014 to which he pleaded not guilty and claimed trial.
05. Complainant Sh. Kuldeep Dhariwal has entered the witness box as PW01 and has been crossexamined by accused. Sh. Dinesh Kumar, relative of complainant and Sh. Vishal Gaurav, Nodal Officer, Bharti Airtel Ltd. have deposed as PW06 and PW07. Police witnesses HC Anil, Ct. Gopal, Ct. Sandeep Kumar, SI Jagdish Kumar (IO) and ASI Kuldeep Singh have testified as PW02, PW03, PW04, PW05 and PW08 respectively. Copy of FIR No. 68/14, PS Saket dated 05.02.2014 and original test identification proceedings were put to accused by prosecution U/s 294 FIR No: 68/14 PS Saket State Vs. Dev Kumar @ Deva Page 4 of 15 Cr.P.C and being not disputed by accused, were exhibited as Ex A1 and Ex A2.
06. After closure of prosecution evidence, accused Dev Kumar @ Deva was examined U/s 313 Cr.P.C and denied the allegations and depositions of complainant and police witnesses against him for alleging false implication. He has claimed innocence by taking plea of alibi for stating to be present at his native place at Punjab on 05.02.2014.
07. Accused has examined Smt. Devender Kaur as DW01 and his witness has deposed to have organized a 'Path' (puja) at her residence at Abhohar District, Firozpur, Punjab on 04th, 05th & 6th February, 2014 which was attended by accused. She has been crossexamined by ld. APP for the State and no other witness was examined by accused.
08. Final arguments have been addressed by ld. APP for State and ld. defence counsel Adv. Sh. Mohinder Singh for accused.
09. Ld. APP for the State has argued for conviction of accused for offence U/s 392 IPC by alluding to deposition of complainant Sh. Kuldeep Dhariwal to submit that accused Dev Kumar @ Deva alongwith his other accomplices had robbed complainant of his belongings and has been correctly identified by complainant as one of the assailants. FIR No: 68/14 PS Saket State Vs. Dev Kumar @ Deva Page 5 of 15
09. Ld. defence counsel per contra has sought acquittal of accused by submitting that no recovery has been effected from accused and he has been falsely implicated by police. Ld. defence counsel further contends that mere identification of accused during his test identification parade without any independent corroborating evidence is not sufficient to prove guilt of accused for robbery as none of other witnesses examined by prosecution has deposed to have witnessed the offence.
10. Having heard their rival submissions and perused the case file, it would be prudent to advert to testimonies of witnesses examined on record for adjudicating upon the guilt or innocence of accused Dev Kumar @ Deva.
11. PWs Sh. Dinesh Kumar and Sh. Vishal Gaurav are formal witnesses who have deposed about mobile (SIM) No. 9958372737 being issued to the former against 'Customer Application Form' proved as Ex PW 7/A. PW Sh. Vishal Gaurav has also proved the call details for period 05.02.2014 to 06.03.2014 as Ex PW 7/B and certificate U/s 65B of Indian Evidence Act as Ex PW 7/C.
12. The star witness of prosecution however is complainant Sh. Kuldeep Dhariwal, examined on record as PW01. He has deposed of being on his way to home from office in the intervening night of 0405.02.2014 and FIR No: 68/14 PS Saket State Vs. Dev Kumar @ Deva Page 6 of 15 to be passing through CISF camp, when he noticed two boys walking ahead of him at a distance of 70 meters and two other boys who started following him. He was stopped by two boys who were following him and one of them put a blade upon his neck. At that point, two other boys walking ahead of him, came to him and one of them snatched his bag and the other hit him on his face. Complainant has identified accused Dev Kumar @ Deva as the boy who was standing behind him and had snatched his wallet and mobile phone make Samsung GalaxyY having SIM No. 9958372737. He has further deposed that his purse was containing Rs. 2,000/ and ATM card of Central Bank and his Samsung Galaxy TabII was taken by accused from his bag which they threw before fleeing from spot. He made a call on 100 No. upon which police came to his house and thereafter he was medically examined at AIIMS. Complainant has proved his complaint (statement) given to police as Ex. PW 1/A and deposed to have pointed the place of incident to police and also identified accused during test identification proceedings.
13. Upon being subjected to crossexamination, complainant Sh. Kuldeep Dhariwal has deposed to have reached his home, made call on 100 number from his home and thereafter returned to spot where police arrived after about 1015 minutes and took him to Trauma Center. Though he FIR No: 68/14 PS Saket State Vs. Dev Kumar @ Deva Page 7 of 15 admitted the spot near footpath being dark as there was no street light, nonetheless denied the suggestion of having not seen accused due to darkness by claiming that there was some light due to moving vehicles. He also recollected that accused had worn blue colour jeans pant and brown shirt on the date of offence and denied the suggestion of having identified accused at the instance of police or that accused had not committed any offence.
14. Complainant's testimony stands corroborated by PWs SI Jagdish and Ct. Gopal who have deposed to have reached at the spot near Saket Metro Station, CISF camp and met complainant Sh. Kuldeep Dhariwal on 05.02.2014. They have referred to his statement (complaint) as Ex PW 1/A and deposed to have accompanied the complainant to AIIMS Trauma Center for his medical examination. SI Jagdish has proved rukka prepared by him as Ex. PW 5/A which was taken to PS Saket by Ct. Gopal for registration of FIR and both witnesses have deposed about further investigation being marked to ASI Kuldeep. PW Ct. Gopal has also deposed about site plan and supplementary statement of complainant being recorded by ASI Kuldeep whereas SI Jagdish has deposed about obtaining CDR, verification of information sheet (parcha 12) of accused and supplementary FIR No: 68/14 PS Saket State Vs. Dev Kumar @ Deva Page 8 of 15 statement of complainant recorded by him after investigation was handed back to him in the month of March.
15. Other police witnesses namely HC Anil, Ct. Sandeep Kumar and ASI Kuldeep Singh have deposed of being on patrolling duty on 12.02.2014 and to have apprehended accused Dev Kumar @ Deva near Saket Metro Station at about 2:30 AM, though his companions coming from the side of Sidullajab village managed to escape. Disclosure statement of accused has been referred as Ex PW 2/A, his arrest memo and personal search memo as Ex PW 2/B and Ex PW 2/C and pointing out memo of place of offence as Ex PW 2/D. In the absence of recovery of robbed articles effected by police on the basis of disclosure statement of accused Ex. PW 2/A, his disclosure statement is inadmissible in evidence being hit by section 25 and 26 of Indian Evidence Act, 1872. All three police witnesses have denied the suggestion about accused being not apprehended by them near Saket Metro Station on 12.02.2014 or accused being lifted from his house. However, their testimonies being limited to extent of apprehension of accused on 12.02.2014, does not constitute any ingredient of robbery by accused and is therefore not material for adjudicating upon the guilt of accused. In the same vein, the contention raised by ld. defence counsel that FIR No: 68/14 PS Saket State Vs. Dev Kumar @ Deva Page 9 of 15 police witnesses could not remember the colour of clothes worn by accused on the date of his apprehension on 12.02.2014 is not significant as complainant (PW01) has clearly remembered the colour of clothes worn by accused on the date of offence on 05.02.2014.
16. DW01 Smt. Devender Kaur has deposed in her examinationin chief that accused Dev Kumar @ Deva was present at her residence at Abhohar, District Firozpur, Punjab on 4th, 5th and 6th February, 2014 as she had organized some 'Path' (puja) and had left her house on 06.02.2014. She has also claimed to have known accused since her husband and his father were friends and denied the suggestion about accused having not visited her house on 4th, 5th and 6th February, 2014, or accused being known to her, she was deposing falsely to save him.
17. As regards the contention raised by ld. defence counsel regarding identification of accused Dev Kumar by complainant during his test identification parade on 15.02.2014 and again in court on 21.04.2014, during recording of his testimony, complainant Sh. Kuldeep Dhariwal has not only identified accused Dev Kumar @ Deva in court, but has also deposed about overt act of accused in the commission of robbery. The relevant portion of his testimony recorded during his examinationinchief is FIR No: 68/14 PS Saket State Vs. Dev Kumar @ Deva Page 10 of 15 reproduced for reference : "The accused present in court today (correctly identified by the witness) was standing behind me and snatched my wallet and mobile phone make Samsung GalaxyY having mobile No. 9958372737."
18. Similarly, upon being subjected to crossexamination, complainant (PW01) has narrated the incidents leading from returning back to spot from his house after making call on 100 number, to arrival of police at spot for taking him to AIIMS Trauma Center and then to PS Saket. He has also explained the source of light from moving vehicles for claiming to have seen accused besides testifying that accused had worn blue colour jeans pant and brown shirt on the date of offence. The relevant portion of his testimony recorded during his crossexamination is reproduced for reference : "It is correct that spot near footpath was dark as there was no street light, however, there was some light due to moving vehicles. It is wrong to suggest that I could not see accused due to darkness. I have seen the accused properly in the police station. I have not been shown any photograph of FIR No: 68/14 PS Saket State Vs. Dev Kumar @ Deva Page 11 of 15 accused. I was called by the IO in the police station.
Accused had worn jeans pant (blue colur) and brown shirt on the date of offence. It is wrong to suggest that I am deposing falsely at the instance of police. It is further wrong to suggest that accused present in the court has not committed any offence and that I have identified him in the court at the instance of police."
19. Testimony of complainant (PW01) Sh. Kuldeep Dahriwal was put to accused during his examination U/s 313 Cr.P.C. which he denied by claiming that complainant had falsely deposed against him. However, accused has not disputed his identification by complainant during his test identification proceeding conducted by Ms. Purva Sareen, Ld. MM, South Distt. on 15.02.2014 which he admitted as Ex. A2 and records his correct identification by complainant (witness).
20. Therefore, complainant's testimony has remained consistent and could not be shaken during his crossexamination by defence counsel. His testimony has also been corroborated by PWs SI Jagdish and Ct. Gopal who have deposed to have met him at the spot near Saket Metro Station, CISF camp on 05.02.2014 and referred to his statement (complaint) as Ex FIR No: 68/14 PS Saket State Vs. Dev Kumar @ Deva Page 12 of 15 PW 1/A and his MLC No. 410713 dated 05.02.2014. It is also well settled that it is the quality of evidence which is to be appreciated as court is required to evaluate evidence carefully on the basis of its quality. Therefore, deposition of complainant Sh. Kuldeep Dhariwal (PW01) creates an impression in favour of his trustworthiness and his testimony suffers from no infirmity whatsoever which would impeach his veracity. Accused Dev Kumar @ Deva has been correctly identified by complainant during test identification proceedings and also in court during trial and no animosity, illwill or grudge whatsoever has been alleged against complainant for claiming false implication. (Reference be made to judgment of Hon'ble Delhi High Court in Khairati Ram vs. The State, ILR (2013) VI Delhi 4542.)
21. As regards plea of alibi, accused Dev Kumar @ Deva himself has not stepped into the witnessbox for proving his alibi nor produced any reservation ticket to satisfy the court of having indeed visited his native place at Punjab on 4th, 5th and 6th February, 2014. Though his witness, DW01 Smt. Devender Kaur W/o Sh. Joginder Singh has deposed that he was present at her house at Abhohar, Distt. Firozpur, Punjab on 04th, 05th and 06th of February, but she too has failed to produce and prove any document to satisfy the court about being a resident of Abhohar, Distt. Firozpur, Punjab or FIR No: 68/14 PS Saket State Vs. Dev Kumar @ Deva Page 13 of 15 having organized some religious function at her house. Her oral testimony about being resident of Punjab and having organized any 'Path' at her house which was attended by accused Dev Kumar @ Deva is not supported by any documentary proof and therefore is insufficient to prove defence of alibi.
22. So far as the legal principle of 'plea of alibi' is concerned, it is governed by section 11 of the Indian Evidence Act, 1872 and the burden to prove an alibi is always upon accused who must prove it to the satisfaction of the court. In case of alibi, the person who takes such plea has to prove his case beyond all reasonable doubts. (Reference be made to Gurcharan Singh Vs. State of Punjab AIR 1956 SC 460 & Chandrika Prasad Singh Vs. State of Bihar AIR 1972 SC 109). Though, burden of proving commission of offence by accused so as to fasten his liability of guilt remains upon prosecution and would not be lessened by mere fact that accused has adopted the defence of alibi. But, once prosecution succeeds in discharging its burden, then it is incumbent upon accused taking the plea of alibi to prove it with certainty so as to exclude the possibility of his presence at the place and time of occurrence.
23. In the present case in hand, in view of unimpeached testimony of complainant Sh. Kuldeep Dhariwal (PW01) who has not only identified FIR No: 68/14 PS Saket State Vs. Dev Kumar @ Deva Page 14 of 15 accused during test identification proceeding, but has also identified him in court besides testifying that accused was standing behind him and had snatched his wallet and mobile phone make Samsung GalaxyY, guilt of accused Dev Kumar @ Deva for offence of robbery strands proved beyond reasonable doubt. Testimony of DW01 Smt. Devender Kaur is not sufficient for proving defence of alibi for reasons already discussed above. Accused Dev Kumar @ Deva therefore stands convicted for offence U/s 392 IPC.
24. Matter be listed for arguments on question of sentence on 27.09.2014.
ANNOUNCED IN THE OPEN COURT DATED: 25th September, 2014 (TARUN YOGESH) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE SOUTH DISTRICT, SAKET COURTS : NEW DELHI FIR No: 68/14 PS Saket State Vs. Dev Kumar @ Deva Page 15 of 15