Delhi District Court
State vs . Suraj @ Kaja Etc. on 23 January, 2013
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 44/08)
Unique ID case No. 02404R0829902007
State Vs. Suraj @ Kaja Etc.
FIR No. : 656/07
U/s : 392/394/397/411/34 IPC
P.S. : Mangol Puri
State Vs. 1 Suraj @ Kaja
S/o Mahender
R/o P/4/4, Mangolpuri, Delhi.
2 Munna @ Bunty
S/o Sh. Dalip Singh,
R/o Q1/29, Mangol Puri, Delhi.
Date of institution of case 14.05.2008
Date on which, judgment has been reserved 23.01.2013
Date of pronouncement of judgment : 23.01.2013
JUDGMENT:
1. The investigations in the present case commenced with receipt of information at P.S. Mangol Puri that one person had been stabbed at Mangolpuri Industrial Area, Phase1. The said information was reduced to writing vide DD No. 105B dated 06.09.2007 and was handed over to PW15 SI Badami Lal and PW1 Ct. S.C. No. 656/07 : State vs. Suraj @ Kaja Etc. : Page 1 of 19 Hakam Singh for investigations, who proceeded to the place of occurrence where they found one Sunil Mishra in an injured condition. His sister Anita was also present. The injured was sent through PW1 Ct. Hakam Singh to Sanjay Gandhi Hospital where he was examined by PW6 Dr. Brijesh Singh who also opined patient to be "unfit for statement". IO recorded statement of Smt. Anita vide Ex.PW15/A, at the hospital, wherein she stated that she was residing in Jhugi No.37, Camp No.2 Jawalapuri, Delhi and that on 03/09/07 her mother in law Smt. Champa Mishra was admitted in Sanjay Gandhi Hospital and that her brother in law Kaushal Mishra was with her and that complainant herself was to stay with her mother in law in the hospital at night and so her cousin brother Sunil Mishra was going to drop her in the hospital on his motorcycle No.DL 1SM8139. At about 9:00pm they crossed Railway Crossing No.4, and reached near Power House. At that time 3 /4 boys stopped motorcycle of Sunil and one of the boys aged about 3032 years, took out a knife and told complainant and her brother to hand over whatever they were having to them. When complainant's brother Sunil objected to it, he was given a blow with the knife by the said assailants and was robbed of Rs.5,500/ and mobile phone bearing No.9210312917. The complainant was also robbed of her mobile phone bearing No.9213364557, her ear tops and nose pin and thereafter the assailants escape towards Mangolpuri. She also stated that she could identify said persons.
On basis of the complaint given by Smt. Anita IO prepared rukka Ex.PW15/B and sent PW1 Ct. Hakam Singh for registration of the case to PS Mangolpuri. In the meantime IO proceeded to the place of occurrence with the complainant and prepared site plan Ex.PW15/C at her instance. The PW1 Ct. Hakam S.C. No. 656/07 : State vs. Suraj @ Kaja Etc. : Page 2 of 19 Singh also came back with copy of FIR Ex.PW9/B and original rukka Ex.PW15/D. Investigation were commenced. On 14/09/07 accused Munna @ Bunty and juvenile Vikas @ Vika were arrested pursuant to secret information. Both the accused disclosed about their involvement in the present case. Recovery of one Sim Card was effected at instance of accused Munna @ Bunty while Juvenile Vikas @ Vika got recovered one mobile phone. On 14/11/07 accused Rohit, also a juvenile, was arrested in the case and a gold nose pin is stated to have been recovered at his instance. Lastly on 10/02/08 accused Suraj @ Kaja was arrested and the weapon of offence namely knife is stated to have been recovered at his instance. Besides this the said accused also got recovered a sum of Rs.300/ out of robbed amount. After completing investigation charge sheet in respect of accused Suraj @ Kaja and Munna @ Bunty was filed before Ld. M.M. while the juveniles Vikas @ Vika and Rohit were sent for trial before the concerned Juvenile Justice Board.
2. Upon committal of this case to the court of Sessions, charges for the offence under Sections 392/34 read with Section 394/34 IPC were framed against the accused Suraj @ Kaja, while separate charge U/s 392/34 read with Section 394/34 read with Section 397 and 411 IPC were framed against accused Munna @ Buty vide order dated 29/09/08. On 20/11/08 the charges against both the accused persons were corrected by Ld. Predecessor and accused Suraj @ Kaja was charged U/s 392/34 read with Section 394/34 and 397 IPC while accused Munna @ Buty @ Puran Singh was charged U/s 392/34, 394/34 and 411 IPC. However, accused persons pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence. S.C. No. 656/07 : State vs. Suraj @ Kaja Etc. : Page 3 of 19
3. The prosecution has examined fourteen witnesses in support of its case.
4. PW2, Sunil Kumar Mishra, is one of the injured in the case. He deposed that on the day of incident i.e. 06/09/07 at about 9:00pm he was going on his motorcycle bearing no.DL 1SM8139 to drop Anita, his sister in relation, to Sanjay Gandhi Memorial Hospital as she was to attend to her mother in law who was admitted there and that as they reached near railway line crossing No.4, 34 persons came in front of his motorcycle and obstructed his way. The PW2 further deposed that as he stopped his motorcycle he was pulled off it and that one of the said boys put knife on him and asked him to hand over whatever they had and that when PW2 objected to the same, one of the miscreants gave him a blow with the knife on his stomach and robbed PW2 Rs.5500/ and his mobile phone make Tata and they also robbed his sister of her ear tops, nose pin and her mobile phone. PW2 stated that due to stab injury he fell unconscious and when he regained consciousness he found himself at Sanjay Gandhi Memorial Hospital. The PW2 was shown his blood stained under garment, which he was wearing at the time of incident and which had been later seized by the IO and was produced before the court in a sealed pulanda which was opened in the court, and identified the same as Ex.P1. He however, failed to identify the mobile set shown to him and denied that the said mobile phone belonged to him.
5. PW6 Dr. Brijesh Singh had attended the injured Sunil Mishra on his admission in hospital on 06/09/07 at around 11:50pm. He proved his signatures at point X on the MLC of injured Ex.PW5/A. S.C. No. 656/07 : State vs. Suraj @ Kaja Etc. : Page 4 of 19
6. PW12 Dr. Amitabh had examined XRay films of the injured and stated that he did not find any abnormality in the XRay films examined by him. He proved his report in this regard as Ex.PW12/A.
7. PW8 Dr. Khurshid was deputed to produced medical record pertaining to injured and deposed that the injured Sunil Mishra was admitted in LNJP Hospital on 07/09/07& discharged on 08/09/07 and was examined and treated by Dr. Nikhil. He proved the discharge summary slip of injured as Ex.PW8/A by identifying handwriting and signatures of Dr. Nikhil thereupon.
8. PW5 Dr. V.K. Jha had given the opinion regarding nature of injury of injured Sunil Mishra as simple and proved his endorsement in regard at point Ex.PW5/B on MLC Ex.PW5/A. The PW5 was recalled for further examination on 16/01/13 as it was seen that he had subsequently given opinion about weapon of offence as well. He proved the sketch of knife, which was prepared by him as Ex.PW5/C and the opinion given by him about said knife, qua the injuries found on injured Sunil Mishra as Ex.PW5/D.
9. PW15 is SI Badami Lal is the Investigating Officer of the present case. He deposed that on 06/09/07 he received Ex.PW11/A i.e. copy of DD No.105B dtd. 06/09/07 regarding stabbing of one person at Mangolpuri Industrial Area, PhI, and after S.C. No. 656/07 : State vs. Suraj @ Kaja Etc. : Page 5 of 19 receiving the same went to spot and met injured Sunil Mishra and his sister Anita. He further deposed that injured Sunil Mishra was taken to hospital and got admitted there and that the concerned Doctor mentioned on the MLC of injured "unfit for statement"
and that PW15recorded Ex.PW15/A i.e. the statement of Anita Mishra sister of injured and prepared rukka as Ex.PW15/B thereupon and sent PW1 Ct. Hakam Singh to PS to get case FIR registered. He further deposed that PW1 Ct. Hakam Singh returned to spot with Ex.PW9/B i.e. computerized copy of FIR and original rukka and that thereafter he took blood stained cloth/underwear of injured in possession vide seizure memo Ex.PW1/A and then went to spot with complainant Anita and prepared site plan Ex.PW15/C and also took motorcycle of injured, bearing No.DL 1SM8193, parked at the spot in possession vide memo Ex.PW1/B. The PW15 further deposed about receiving secret information on 14/09/07 about some robbers and apprehension/arrest of Vikas @ Vika (since juvenile) and accused Munna from park infront of NDPL Office by raiding party comprising of himself, PW4 HC Naresh, PW10 HC Rajpal and Ct. Tasweer. He proved the disclosure statement of accused Munna as Ex.PW4/A and disclosure statement of juvenile Vikas @ Vika as markX. He also proved the arrest and personal search memo of accused Munna @ Bunty as Ex.PW4/B and Ex.PW4/C respectively. He further deposed that accused Munna @ Bunty and Juvenile Vikas @ Vika lead the police party to the place of occurrence and pointing out memo markY was prepared by him at their instance. The PW15 further deposed that accused Munna lead the police party to his house situated at QBlock Mangolpuri and got recovered one sim card from the Tand (Slab) of his house and that on checking the said sim card its number was found as 9213364557. he also S.C. No. 656/07 : State vs. Suraj @ Kaja Etc. : Page 6 of 19 deposed that accused Munna disclosed that the said sim card was of mobile phone no. 9213364557 and it was the same phone which had been robbed by them and that the phone set had been handed over by him to juvenile Vikas @ Vika. The PW15 deposed that he put the said sim card in a match box and seized it vide memo Ex. PW4/D and that thereafter one mobile phone set make Haier was recovered at the instance of juvenile Vikas @ Vika from his house and was seized vide seizure memo markX1.
The PW15 then deposed about apprehension of juvenile Rohit on 19/11/07 from his house at PBlock, Mangolpuri and stated that name of juvenile Rohit had been disclosed by accused Munna and juvenile Vikas @ Vika and that PW15 took assistance of PW7 Ct. Shri Niwas to apprehend juvenile Rohit as Ct. Shri Niwas was the beat constable of the area. The PW15 also deposed that during the course of interrogation juvenile Roihit confessed his guilt and admitted his involvement in the present case. He proved the photocopy of the disclosure statement of juvenile Rohit as markZ. He further deposed that the juvenile Rohit got recovered one nose pin of golden colour from Alla (Box made in the wall) while saying that the said nose pin was robbed by them in the present case. The PW15 proved the seizure memo of the nose pin as mark Z1 and the pointing out memo, prepared at the instance of juvenile Rohit, as markZ2.
The PW15 then deposed about arrest of accused Suraj @ Kaja on 10/02/08. He stated that on that day he was investigating case FIR No.73/08 and was present at Katra Market Mangolpuri along with PW3 Ct. Yogender and received a secret information that two boys who used to rob people were sitting in Vatika Park and that on receiving the said information he apprehended juvenile Vikas @ Vika (already apprehended by PW15 in this case earlier) and accused Suraj @ Kaja. He proved the S.C. No. 656/07 : State vs. Suraj @ Kaja Etc. : Page 7 of 19 disclosure statement of accused Suraj @ Kaja as Ex. PW3/A and his arrest and personal search memos as Ex. PW3/D and Ex. PW3/E respectively. The PW15 further deposed that accused Suraj @ Kaja lead the police party to a place behind Indian Oil Petrol Pump and got recovered one dagger type knife from bushes there and disclosed that he had used the said knife in the present case as well as case FIR No. 73/08. The PW15proved the sketch of knife as Ex.PW3/B and its seizure memo as Ex.PW3/C and stated that he seized the knife in case FIR No.73/08 PS Mangolpuri. The PW15 then deposed that accused Suraj @ Kajaj lead the police party to place of occurrence and that he had prepared pointing out memo Ex.PW3/D at the instance of accused Suraj @ Kaja.
The PW15 further deposed that he had moved applications for Judicial TIP of accused Munna @ Bunty and juveniles Vikas and Rohit on different dates however they all refused to participate in TIP Proceedings and that he had also initiated proceedings for judicial TIP of accused Suraj but the same was dropped as the complainant was not traceable at that time. The PW15 further deposed that he had obtained subsequent opinion regarding the weapon of offence from Dr. V.K. Jha and proved copy thereof as Ex.PW15/D (Original opinion was placed on the file of Case FIR No.73/08 U/s 394/397/411/34 IPC registered at PS Mangolpuri).
The PW15 identified the accused Munna @ Bunty and Suraj @ Kaja in the court. He also identified the case property i.e. the under garment of injured Sunil Kumar Mishra as Ex.P1 ; sim card which was got recovered by accused Munna @ Bunty as Ex.P2 ; mobile phone make Haier which was got recovered by juvenile Vikas @ Vika as Ex.P3 ; knife which was got recovered by accused Suraj @ Kaja as Ex.P4 S.C. No. 656/07 : State vs. Suraj @ Kaja Etc. : Page 8 of 19 and Nose pin which was got recovered by Juvenile Rohit as Ex.P5.
During his cross examination PW15 stated that during the entire investigation injured Sunil Mishra and complainant Anita Mishra did not provide him with any proof of ownership or bills of any of the robbed articles. He admitted that he had not recorded the statement of complainant Anita Mishra to the effect that mobile phone which she was robbed of, belonged to Kaushal Singh or how Kaushal Singh was related to her. He termed it correct that he had got information about ownership of mobile phone No.9213364557 by Kaushal Singh from Nodal Officer, Tata Indicom. He also termed it correct that in the initial information given by Smt. Anita Mishra she had only mentioned number of assailants and not their age, description, identification, height or any other feature. It is also brought out from the cross examination of PW15that he had not joined any public persons or neighbour in investigation at the time of alleged recovery of sim card from the house of Munna. He termed it correct that the knife like the one recovered in the present case was easily available in the market. He denied that he had planted the sim card on accused Munna @ Bunty or that he had shown the accused persons to witnesses before moving application for their judicial TIP.
10. PW1 Ct. Hakam Singh had accompanied the IO SI Badami Lal on 07/09/07 and deposed that on that day on receipt of DD No.105B, he along with IO SI Badami Lal reached at Power House, Railway Crossing No.4 where they met injured Sunil Mishra and his sister Anita Mishra and that on the instruction of the IO, he took injured Sunil Mishra to hospital and got him admitted in there and that said injured was opined to be "unfit for statement" by the doctor and that IO recorded the statement of Anita Mishra S.C. No. 656/07 : State vs. Suraj @ Kaja Etc. : Page 9 of 19 and prepared rukka and handed it over to PW1 for the registration of case. The PW1 further deposed that he got the case FIR registered at PS and went to hospital with copy of FIR and original rukka and handed them over to the IO and that in his presence the doctor handed over one sealed pulanda sealed with the seal of SG MS which was seized by the IO vide seizure memo Ex.PW1/A and that thereafter they returned to the spot from where motorcycle bearing registration No.DL 1SM8139 was seized vide memo Ex.PW1/B.
11. PW4 HC Naresh Kumar and PW10 HC Rajpal had joined the investigations of the case with IO. PW15 SI Badami Lal on 14/08/07 at the time of arrest of accused Munna @ Bunty and Juvenile Vikas @ Vika and deposed regarding the investigation conducted by the IO in their presence and identified their signatures on various memos prepared in their presence by the IO. The PW10 HC Rajpal however failed to identify accused Munna @ Bunty in the court.
12. PW7 Ct. Shri Niwas had joined the investigations with PW15 SI Badami Lal on 19/11/07 at the time of arrest of juvenile Rohit and deposed regarding the investigation conducted by the IO in his presence and identified his signatures on various memos prepared in his presence by the IO.
13. PW3 Ct. Yogender Singh had joined the investigations with PW15 SI Badami Lal on 10/02/08 at the time of arrest of accused Suraj @ Kaja and juvenile Vikas @ Vika (earlier arrested by the IO in this case) and deposed regarding the S.C. No. 656/07 : State vs. Suraj @ Kaja Etc. : Page 10 of 19 investigation conducted by the IO in his presence and identified his signatures on various memos prepared in his presence by the IO.
14. PW11 HC Mukesh Kumar was posted as Duty officer at PS Mangolpuri on 06/09/07 and had received information at about 11:25pm that one person had been stabbed at Mangolpuri Industrial Area Phase 1 and reduced the same into writing vide DD No.105B. He proved the attested copy of said DD as Ex.PW11/A.
15. PW9 SI Dharam Pal Singh is the duty officer. He proved computerized copy of FIR as Ex.PW9/B and endorsement made by him on rukka as Ex.PW9/A respectively.
16. PW13 Dr. Shabuddin, learned MM, had conducted TIP proceedings in respect of the accused Munna @ Bunty and juvenile Vikas @ Vika and deposed regarding the same. He proved the TIP proceedings as Ex.PW13/A to Ex.PW13/D and stated that both accused Munna @ Bunty and juvenile Vikas @ Vika had refused to join TIP proceedings.
17. PW14 Kaushal Singh is the owner of the mobile phone make Tata bearing No.9213364557 and he deposed about purchasing the said mobile phone with sim card. He also deposed that he had handed over said mobile phone to his Bhabhi (sister - in law) Anita who was residing in a separate Jhuggi i.e. Jhuggi bearing No.37, Camp No.
2. However, as on the day PW14 appeared to depose in the court, he could not state S.C. No. 656/07 : State vs. Suraj @ Kaja Etc. : Page 11 of 19 where his Bhabhi was residing and claimed that it was due to the fact that certain dispute had arisen between their families in the year 2006. PW14 admitted in his cross examination that he had not taken bill of purchase of his mobile phone and that phones similar to said phone were easily available in the market. He also stated that he had not made any request for blocking of the number of his mobile phone after dispute arose between his family and family of his bhabhi and that he had not bought mobile phone for any other relative by using his identity card.
18. After recording of prosecution evidence, statements of both the accused persons u/s 313 Cr. P. C. were recorded. Both the accused persons stated that they had been falsely implicated in the present case. They did not lead any evidence in their defence.
19. Arguments have been put forward by Ld. Addl. PP for State as well as Ld. Amicus Curie for the accused persons.
20. Learned Additional PP has stated that prosecution has succeeded in proving its case against the accused persons beyond reasonable doubt and hence accused persons be held guilty of the charged offences.
21. On the other hand learned counsel for accused has contended that prosecution has failed to prove its case against the accused persons as the accused have not been identified by any of the injured/complainant. It is also submitted that no effort S.C. No. 656/07 : State vs. Suraj @ Kaja Etc. : Page 12 of 19 was made by the IO to join injured Sunil in proceedings for arrest and recovery of the case property from the accused persons and that even otherwise injured Sunil Mishra as neither identified the accused persons nor the case property or the knife which is alleged to have been used in commission of offence in the present case. It is also stated that the entire recovery proceedings are vitiated as no independent public person has been joined in the said proceedings and that even otherwise the knife alleged to have been recovered from possession of accused Suraj @ Kaja was recovered from an open public place and such like knifes are easily available in the market. It is also stated that PW14 Kaushal Singh is a planted witness and prosecution has failed to show that he is related to complainant Anita in any manner. The fact that injured Sunil had also not mentioned about relationship between Kaushal Singh and Anita has also been pointed out as failure on the part of prosecution to connect the accused Munna @ Bunty with the recovery of the sim card. It is accordingly, prayed that accused persons be acquitted of the charged offences in the present case.
22. I have heard the arguments put forward by ld. Addl. PP and learned defence counsel for the accused persons and have carefully gone through the record of the case. I have also carefully considered the evidence adduced by the prosecution in support of its case.
23. In the present case accused persons are alleged to have robbed injured Sunil Kumar Mishra of Rs. 5,500/ and mobile phone no. 9210312917 and his cousin sister Anita, complainant of one pair of ear tops, one nose pin and mobile phone number S.C. No. 656/07 : State vs. Suraj @ Kaja Etc. : Page 13 of 19 92133645517. It is also alleged that at the time of commission of robbery, accused Suraj @ Kaja and Munna @ Bunty and their juvenile accomplices Vikas @ Vikka and Rohit, voluntarily caused hurt to said Sunil Kumar Mishra and that the weapon used in commission of robbery was got recovered by accused Suraj @ Kaja, who had used the same during commission of the robbery.
24. In order to prove its case, the prosecution has examined injured Sunil Kumar Mishra as PW2, however as submitted by ld. Amicus Curie, this witness has neither identified the accused persons namely Suraj @ Kaja and Munna @ Bunty, nor has he identified the case property i.e. Mobile phone make Haier, which even otherwise was recovered from the possession of juvenile Vikas @ Vikka. The only other material witness, who could have thrown light on the role played by the accused persons in commission of robbery, is complainant Smt. Anita, who was reported to have expired on 30.11.2009. The complaint made by Smt. Anita, has otherwise been proved as Ex. PW15/A by IO SI Badami Lal, who had recorded the said complaint. Ld. Addl.PP has contended that Ex. PW15/A is admissible in evidence against the accused persons and proves their culpability beyond reasonable doubt. However, this submission made by ld. Addl. PP cannot be sustained as perusal of Ex. PW15/A shows that the same neither finds mention of the names or any other description like age, height etc. of the accused persons. Moreover, whatever has been stated by complainant Anita (now deceased) is based on the facts perceived by her by her senses i.e. facts seen and heard by her with her own eyes and ear and in these circumstances, the testimony of IO qua Ex. PW15/A is only of hearsay nature as has been held in the judgment titled as Surjit Kumar @ S.C. No. 656/07 : State vs. Suraj @ Kaja Etc. : Page 14 of 19 Shakir Ali @ Ganja vs. State (Govt. of NCT of Delhi) 2012 [2] JCC 797, wherein the previous judgment of the court in case of the coaccused Pradeep @ Allahabadi & Balmukund v. State (Crl. Appeal No. 704 & 705/2011, decided on 15th November, 2011), was referred to with observation that : "... In this case, the prosecution version was that the crime was witnessed by Mohd. Najim. However, he was not produced to testify in court, in support of its case. The State contends nevertheless, that his statement was recorded by PW16, who deposed to having done so, and that he had implicated the Appellant and the coaccused for the crime. We are afraid that such reasoning is unfeasible. PW16 can testify to what he saw and observed ; his deposition regarding what someone else - who did not later depose in court - said, is clearly inadmissible, under the hearsay rule. At best, what was stated by Najim could be useful to help in the investigation. What however, is admissible in court, and permissible for the court to look into, is whether the witness who deposes about a fact seen or experienced by him, can be relied on. Therefore, this court is of opinion that PW16's testimony about what was recorded by him, on the basis of Najim's statement, is inadmissible in law..."
25. Coming to the recovery of knife at the instance of accused Suraj @ Kaja, since the knife in question was neither shown to the witness i.e. PW2 Sunil Kumar Mishra, nor has he given any description of knife in his statement made before the court, it cannot be concluded that the knife in question was used in commission of offence in the present case.
26. Having this opinion, I am fortified by the judgment titled as " Samiuddin @ Chhotu Vs. State of NCT Delhi ( cited as cited as 2010 (4) JCC 3091)", it has been laid down by the Hon'ble High Court of Delhi that : S.C. No. 656/07 : State vs. Suraj @ Kaja Etc. : Page 15 of 19 " Even in the present case, it is an undisputed fact that the knife in question was not recovered , much less produced in the course of trial. In such circumstances, this court is inclined to agree with the submissions of the counsel for the appellant that the appellant could be sentenced under section 392 IPC alone and the offence does not fall within the ambit of section397 IPC ."
27. Further, in the case titled as "Mohd. Dulal @ Fazal Karim Vs. State (cited as cited as 2010 (3) JCC 1724)", it has also been held by the Hon'ble High Court of Delhi that the weapon which the appellant is alleged to have used in the incident had not been recovered during investigation and so section397 IPC would not get attracted.
28. In the present case also, no weapon of offence have been recovered in this case and in the absence thereof, the provisions of section397 IPC are not attracted as has been laid down by the Hon'ble High Court of Delhi in aforesaid cases cited as 2010 (4) JCC 3091 & 2010 (3) JCC 1724 .
29. Apart from the above, in the case titled as " Adesh Kumar and etc. Vs. The State" (reported as 1986 CRL.L.J. 233), it has been laid down by the Hon'ble High Court of Delhi that: S.C. No. 656/07 : State vs. Suraj @ Kaja Etc. : Page 16 of 19 " The weapon with which Jagdish appellant inflicted injury on the person of Dharam Singh PW was not recovered. Dharam Singh did not state anything in his statement as PW5 as to what kind of knife was that which was used by Jagdish appellant, nor about the size of its blade etc. Under the circumstances it could not be held as proved on the record that the weapon used by Jagdish appellant in the commission of the robbery was a deadly 'weapon'. The trial Court was thus in error in convicting the appellant under S. 397 IPC."
30. It is noteworthy that PW15 has clearly stated the knife was recovered from a public place i.e. bushes behind Indian Petrol Pump and admittedly without joining any public witness in recovery proceedings of said knife likes of which are easily available in the market. In view of this, not much credence can be given to the recovery of alleged knife at the instance of accused Suraj @ Kaja to connect him with the offences, he has been charged with in the present case.
31. Ld. Addl. PP has contended that recovery of SIM of mobile phone no. 9213364557 at the instance of accused Munna from his house shows that he had committed the offence in the present case. In this regard also, the prosecution has failed to link the accused Munna @ Bunty with the offences of the present case on the basis of said recovery, since first of all, no proof of ownership of said SIM has been filed. The mobile phone, from which the said SIM is alleged to have been removed is stated to have been robbed from complainant Anita. The complainant herself is not the owner of the said SIM and prosecution has examined PW15 Kushal Singh, brotherinlaw of Anita, who is stated to have given the mobile phone to Anita for use. Even PW15 has S.C. No. 656/07 : State vs. Suraj @ Kaja Etc. : Page 17 of 19 not produced any document regarding the SIM card in question. Moreover, statement of PW14 was recorded before the court on 11.01.2012 and when he was asked about the present whereabouts of PW Anita, he stated that he did not know where his bhabhi was residing at present, since certain disputes have arisen between their families in the year 2006. As per the death certificate of PW Anita, she had expired on 30.11.2009. Even though, relation between PW14 Kushal Singh and family of Anita were strained, it is surprising that he did not know about death of his own bhabhi and this fact coupled with the fact that no document of ownership of SIM card has been placed on record, creates a doubt about its recovery in the manner stated by the prosecution.
32. There is another discrepancy in the prosecution case for, as per the case of the prosecution, juvenile accomplice Rohit, who was arrested on 19.11.2007 is alleged to have got recovered a nose pin, which too was robbed from complainant Anita. On the other hand, in the disclosure statement of accused Suraj @ Kaja i.e Ex. PW3/A, it is mentioned that it was he, who had kept ear tops and nose pin of complainant and sold it to passersby (Rah chalte adami ko bech diya) and used the money received therefrom, for his own use. This document of the prosecution also creates a doubt regarding the prosecution case.
33. Thus, in nutshell, in view of the above discussion and observations and having regard to the fact and circumstances of the present case, I am of the considered opinion that the prosecution has failed to prove the guilt of the accused persons on record, beyond the reasonable doubts. Accordingly, I acquit accused Suraj @ Kaja and S.C. No. 656/07 : State vs. Suraj @ Kaja Etc. : Page 18 of 19 Munna @ Bunty of the charged offences, by giving them the benefit of doubt.
File be consigned to the Record Room.
(Announced in the open Court ) (Illa Rawat)
(Today on 23.01.2013) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
S.C. No. 656/07 : State vs. Suraj @ Kaja Etc. : Page 19 of 19
FIR No. 656/07
P.S. Mangol Puri
State Vs. Suraj @ Kaja Etc.
23.01.2013
Present : Ld. Additional PP for the State.
Both accused on bail.
Sh. Sachin Sharma, ld. Amicus Curie for both the accused persons. Final arguments heard.
Be listed for orders at 3:00 PM today itself.
ASJ (NorthWest)01
Rohini/Delhi
23.01.2013
At 4:30 PM
Present : As before.
Vide separate judgment, announced today in the open Court, both the accused persons have been acquitted of the charged offence.
Both the accused request that their previously furnished bail bonds may be accepted in compliance of Section 437A Cr.PC. Request allowed. Accordingly, previous bail bonds of both the accused persons are extended for a period of six months from today in terms of Section 437A CrPC.
File be consigned to Record Room.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi S.C. No. 656/07 : State vs. Suraj @ Kaja Etc. : Page 20 of 19 S.C. No. 656/07 : State vs. Suraj @ Kaja Etc. : Page 21 of 19