Delhi District Court
State vs Deepak @ Kallu And Anr on 16 December, 2024
SC No. 587/2023 State Vs. Deepak @ Kallu & Anr.
IN THE COURT OF SH. VINAY KUMAR KHANNA,
PRINCIPAL DISTRICT & SESSIONS JUDGE, NORTH
DISTRICT: ROHINI COURTS: DELHI
In the matter of:-
(Sessions Case No. 587/2023)
CNR No. DLNT01-010180-2023
FIR No. 476/2023
Police Station Adarsh Nagar
Charge sheet filed Under Section 392/397/411/34 IPC
Charges framed Under Section 392/506/397/411/34 IPC
State Prosecution
Through : Ms. Promila Singh,
Ld. Addl. Public Prosecutor.
Versus
1. Deepak @ Kallu
S/o Sh. Madan
r/o H. No. 8A, Valmiki Chowk,
Azadpur village, Delhi. Accused
(Through : Sh. Robin Kamra, CLADC
& Sh. J.K. Kalson, DCLADC)
2. Sumit
S/o Sh. Mahendra
R/o H. No. 412A,
Near Mother Dairy Valmiki Chowk
Azadpur, Delhi. Accused
(Through : Sh. Raman Kumar and Ms.
Aarti, Advocates).
Digitally
signed by
VINAY
VINAY KUMAR
KUMAR KHANNA
KHANNA Date:
2024.12.17
16:31:44
+0530
FIR No. 476/2023: PS Adarsh Nagar Page 1 of 14
SC No. 587/2023 State Vs. Deepak @ Kallu & Anr.
Date of Institution of case before the Ld. MM 25.08.2023
Date of committal of case to Sessions Court 14.09.2023
Date of arguments 16.12.2024
Judgment Pronounced on 16.12.2024
Decision Acquitted
JUDGMENT
1. The facts in brief, which are borne out from the charge-sheet are that at 08.30:55 hours on 15.06.2023, an information regarding incident of robbery on the point of knife was received at PS Adarsh Nagar vide GD No. 0028A. The information was given to HC Imran (PW5), who along with Ct. Rajender (PW3) reached at the spot, where they met complainant Kamlesh Kumar, who was panicked. HC Imran recorded statement of complainant wherein he narrated the incident of robbery with him by both the accused persons. On the basis of his statement, case u/s 392/397/34 IPC was got registered. During search, both the accused were apprehended at the instance of complainant. From the cursory search of accused Deepak @ Kallu, a mobile phone POCO M3 colour Black from right side pocket of his wearing lower was recovered, which was taken into police possession and from the cursory search of accused Sumit, an amount of Rs. 455/- from right side pocket of his half pants were recovered. Accused Sumit got recovered a Palta (iron instrument), which was used in the commission of offence and the same was also taken into possession. During Digitally signed by VINAY VINAY KUMAR KUMAR KHANNA KHANNA Date:
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investigation, statement of witnesses u/s 161 CrPC were recorded, both accused were arrested and after completion of the investigation, the charge-sheet against both the accused u/s 392/397/411/34 IPC was filed in the court of Metropolitan Magistrate.
2. On appearance in the court of Ld. Metropolitan Magistrate both the accused persons were supplied with the copies of the charge- sheet and other documents, and after requisite compliance under Section 207 CrPC, the matter was committed by the Ld. Magistrate to the Court of Sessions, as both the accused had been charge-sheeted for the offence punishable u/s 397 IPC, exclusively triable by the Court of Sessions. After hearing the learned counsel for both the accused persons and learned Addl. P.P. for the State, vide order dated 05.10.2023, both the accused were charged for the offences punishable u/s 392/411//506/34 IPC and accused Deepak @ Kallu was also charged for the offence u/s 397 IPC to which they pleaded not guilty and claimed trial.
3. To substantiate its case, the prosecution examined seven witnesses in all, the brief details of which are as under:
SN Witness Nature of deposition
1. PW 1 Sh. Complainant.
Kamlesh
Kumar
VINAY
KUMAR
KHANNA
FIR No. 476/2023: PS Adarsh Nagar Page 3 of 14 Digitally signed by
VINAY KUMAR
KHANNA
Date: 2024.12.17
16:31:59 +0530
SC No. 587/2023 State Vs. Deepak @ Kallu & Anr.
2. PW 2 W/ASI Duty Officer, who reduced the information of Mithlesh incident vide DD No. 28A Ex.PW2/A, attested copy of which is Ex.PW2/B. She also got recorded the present FIR Ex.PW2/C, made her endorsement Ex.PW2/D on the rukka and proved certificate u/s 65B of Evidence Act Ex.PW2/E.
3. PW 3 HC Went to spot with HC Imran Khan from where Rajender he went to PS with rukka for registration of FIR.
4. PW 4 Laxmi He went to spot along with IO/PSI Ramji Narayan Singh. He is a witness to arrest, personal search, disclosure statement and recovery of the robbed articles.
5. PW 5 HC On receipt of information of incident, he went Imran Khan to spot and recorded the statement of complainant.
6. PW 6 HC MHC(M) who proved the relevant entry Chhatra Ex.PW6/A (OSR) in register No. 19 regarding Narayan depositing of case property in the Malkhana
7. PW 7 SI IO, who after completion of investigation, filed Ramjee Singh charge-sheet before the court concerned.
4. On closure of prosecution evidence, the statement of accused u/s 313 CrPC were recorded, wherein they pleaded innocence and stated that they have been falsely implicated in the present case. They opted not to lead any Defence Evidence.
5. Final arguments were advanced by Ms. Promila Singh, learned Addl. Public Prosecutor for the State, Sh. Robin Kamra, VINAY KUMAR KHANNA Digitally signed by VINAY FIR No. 476/2023: PS Adarsh Nagar Page 4 of 14 KUMAR KHANNA Date: 2024.12.17 16:32:07 +0530 SC No. 587/2023 State Vs. Deepak @ Kallu & Anr.
learned Chief Legal Aid Defence Counsel, Sh. J.K. Kalson, learned Deputy Chief Legal Aid Defence Counsel for accused Deepak @ Kallu and Sh. Raman Kumar, learned counsel for accused Sumit. This court has considered the rival contentions put forth by both the parties, and scrutinized the evidence adduced by the prosecution.
Analysis, Reasoning & Conclusion.
6. In nutshell, the case of the prosecution is that on 15.06.2023 at about 08.10 am at Shop No. Z-82, Shadi Nagar, Azadpur, Delhi, the complainant Sh. Kamlesh Kumar, after being put under fear of death/injury, with a deadly weapon i.e. knife by accused Deepak @ Kallu, was accosted and both the accused persons namely Deepak @ Kallu and Sumit robbed cash of Rs. 20,000/- from the pocket of the complainant Sh. Kamlesh Kumar, his Mobile phone make POCO and all available petty cash, in denomination of currency notes of Rs. 20, Rs. 5 and Rs. 10, which were present in the cash box lying in his shop at that time. Both the accused while committing robbery, criminally intimidated the complainant by threatening him with death. Further, on 15.06.2023, accused Deepak @ Kallu was found in possession of robbed black coloured mobile phone make POCO M3, belonging to complainant and accused Sumit was found in possession of part of robbed cash, amounting to Rs. 455/-, belonging to complainant, knowing or having reasons to believe the same to be stolen / robbed property of this case. Digitally signed by VINAY VINAY KUMAR KUMAR KHANNA KHANNA Date:
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7. Perusal of the record reveals that PW1/complainant Sh.
Kamlesh Kumar, who was the main witness of the prosecution, in his deposition, PW1 narrated the incident of robbery committed qua him. He deposed that on 18.06.2023 at about 8:10 am, when he opened his shop situated at Z-82, Railway Road, Shadi Nagar, Azarpur, Delhi, near Mother Dairy, suddenly two boys came and entered into his shop and closed the door of his shop. One of those boys was carrying halwaai waala palta and other boy was carrying knife in his hand. Both the aforesaid boys showing him palta and knife, stated that "jitna bhi tere paas paisa hai, sab nikaalkar mujhe de do ". PW1 got afraid by them and took out cash of Rs. 20,000/- from the left side pocket of his pants and gave the said amount to them, which was in the denomination of currency notes of Rs. 500/- and Rs. 100/-. One of those boys, took out/snatched his mobile phone make POCO from the upper pocket of his shirt. The other boy took out the money from the cash box of his shop containing the currency notes of Rs. 5/-, 10/- and 20/-. Thereafter, both the said boys ran away from the spot, threating him that "agar iss ghatna ke baarey mein kisi ko kuchh bataaya toh jaan se maar denge". PW1 was under shock and frightened because of the incident. Someone called the police at 100 number. Police reached at the spot, and recorded his statement Ex.PW1/A. However, PW1 deposed that he did not know what was written in the complaint Ex. PW1/A and he had merely signed the same. He deposted that later he came to know their names as Sumit and Deepak @ Kallu. Digitally signed by VINAY VINAY KUMAR KUMAR KHANNA KHANNA Date:
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8. However, when the question of identification came to the fore, and attention of complainant / PW1 was drawn towards the accused Deepak @ Kallu and accused Sumit, who were present in the Court, on seeing them, he (PW1) deposed that accused Deepak @ Kallu and Sumit are not those two boys, who had committed robbery with him and threatened him. PW1 further deposed that he had not shown the place of incident to the police and both the accused persons i.e. Deepak @ Kallu and Sumit were not arrested on his identification, nor has any recovery related to the present case, was effected in his presence from the accused persons. PW1 further deposed that he could not identify the said palta and knife, even if shown to him.
9. Since PW1 resiled from his previous statement made to the police, he was permitted to be cross-examined by learned Prosecutor for the State, during which he denied that both the accused persons i.e. Deepak @ Kallu and Sumit had committed robbery upon him on 15.06.2023 at about 8:10 am in his aforesaid shop or that they both had committed robbery of cash amount of Rs. 20,000/- and his mobile phone and available cash lying in the cash box of his shop or that they both had criminally intimidated him by threatening him with death or that accused Deepak @ Kallu, at the time of committing robbery, had used knife. PW1 further denied that on 15.06.2023, near Mother Dairy, Azadpur, Delhi, his robbed mobile phone was recovered from the VINAY KUMAR KHANNA FIR No. 476/2023: PS Adarsh Nagar Page 7 of 14 Digitally signed by VINAY KUMAR KHANNA Date: 2024.12.17 16:32:28 +0530 SC No. 587/2023 State Vs. Deepak @ Kallu & Anr.
possession of accused Deepak @ Kallu in his presence. PW1 also denied that his robbed cash amount of Rs. 455/- was recovered from accused Sumit on 15.06.2023 near Mother Dairy, Azadpur, Delhi, in his presence. PW1 furhter denied that at the time of incident of robbery with him, accused Sumit, was carrying halwaai waala palta or that accused Deepak @ Kallu was carrying knife in his hand. PW1 also denied that accused Deepak @ Kale took out his Poco mobile phone from upper pocket of his shirt. PW1 further denied that accused Sumit had taken out cash from his cash box kept at his shop, at the time of robbery. PW1 also denied that both the accused persons i.e. Deepak @ Kallu and Sumit, after committing robbery upon him, had threatened him with death. PW1 also denied that the police had recorded his supplementary statement dated 25.06.2023.
10. During cross-examination conducted by the learned Legal Aid Counsel for accused Deepak @ Kallu and counsel for accused Sumit, PW1 admited that there is no identification mark on knife Ex.P-3 and palta Ex.P4 and that similar type of knife Ex.P3 and palta Ex.P4 are easily available in the market.
11. As per prosecution version, PW2 who is complainant, was the star witness but he could not identify both the accused persons to be the perpetrators of the crime. In cross-examination conducted by the Ld. Addl. PP for the State, he also denied that arrest memo of both the Digitally signed by VINAY VINAY KUMAR KUMAR KHANNA FIR No. 476/2023: PS Adarsh Nagar Page 8 of 14 KHANNA Date:
2024.12.17 16:32:34 +0530 SC No. 587/2023 State Vs. Deepak @ Kallu & Anr.
accused persons Ex.PW1/C & Ex.PW1/D were prepared in his presence. Nothing incriminating could be brought on record during cross-examination of PW1 by the learned Prosecutor, which could be of any assistance to the prosecution case.
12. Learned Prosecutor for State submitted that both accused are habitual offenders. Complainant has turned hostile as he could not see the face of the assailant, but the recovery of robbed articles was affected in the presence of the complainant and he has identified his mobile phone make POCO. It is sufficient to convict both the accused u/s 411 IPC.
13. On the other hand, learned Legal Aid Counsel for accused Deepak @ Kallu and counsel for accused Sumit have submitted that accused persons have been falsely implicated in the present case and their signatures were taken on blank papers by police officials at Police Station. It is further argued that complainant is hostile and he has not identified both the accused persons to be the offender and he also denied that recovery was affected in his presence. Complainant also could not identify his recovered articles. No public witness qua arrest and recovery was made or examined by the prosecution. IO had not joined any independent witness. No notice was given to any public person for not joining the investigation. Further the recovered Palta Digitally signed by VINAY VINAY KUMAR KUMAR KHANNA KHANNA Date:
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(alleged instrument) is easy available in the market and in the absence of any incriminating evidence against them, they cannot be convicted.
14. Having considered the submissions of rival sides and material on record including the documents as well the statements of the witnesses, this court finds that the case of the prosecution, which primarily rested on the testimony of its material witness i.e. PW1/complainant, has not been established. The star witness of the prosecution has denied the case of the prosecution on vital aspect of complicity of the accused. PW1 categorically denied that both the accused persons were the same person who robbed him. PW1 also deposed that he could not say as to whether the cash amount of Rs. 455/- Ex.P1 is the same robbed amount or not and he cannot identify the same. There is no explanation with regard to non-joining of public witnesses qua recovery of the weapon of offence i.e. knife.
15. It is pertinent to note that testimony of hostile witnesses cannot be washed away simply because the witnesses have turned hostile and that part of testimony, which is relevant and truthful can be acted upon, if it is aboveboard, reference in this context can be made to the judgments in Raja v. State of Karnataka, 2016 (9) SCALE 627 and Koli Lakhman Bhai Chanabhai v. State of Gujarat, (1999) 8 SCC 624.
Digitally signed by VINAY VINAY KUMAR KUMAR KHANNA KHANNA Date:
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16. In Koli Lakhman Bhai Chanabhai v. State of Gujarat (Supra), Hon'ble Supreme Court held as under:
"It is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remains admissi- ble in the trial and there is no legal bar to base his con- viction upon his testimony if corroborated by other re- liable evidence."
17. In the instant case, even after applying the aforesaid proposition, the result remains unaltered as the evidence of the pivotal witness/complainant narrate the incident and its details, but on the vital and most crucial aspect of complicity of accused, he has not supported the case of the prosecution. Considering the fact that the star witnesses of the prosecution did not utter a single word against both the accused, which could support the prosecution story, the prosecution has failed to prove its case against both the accused. In view thereof, this courts finds that nothing incriminating evidence has come on record against both the accused persons so far as the Charges u/s 392/397/506/34 IPC are concerned. Accordingly, the accused Deepak @ Kallu and Sumit, deserve to be acquitted of the offences punishable u/s 392/506/397/34 IPC.
18. As far as Section 411 IPC qua both the accused is concerned, the main witnesses to the recovery of robbed articles and weapon of Digitally signed by VINAY VINAY KUMAR KUMAR KHANNA KHANNA Date:
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offence are complainant PW1, PW4 HC Laxmi Narayan and PW7 IO SI Ramjee Singh. PW1 deposed that mobile phone make POCO Ex.P2 is his mobile phone but he has not stated that the said mobile phone was robbed by the either of the accused perons or that the same was recovered from the possession of accused. PW1 denied that seizure memo Ex.PW1/G qua knife was prepared in his presence. PW1 also could not admit or deny whether the recovered amount of Rs.455/- was the same robbed amount or not. PW1 neither in his examination in chief nor in his cross-examination deposed that the robbed articles were recovered from any of the accused persons.
19. Police witnesses i.e. PW4 HC Laxmi Narayan and PW7 IO SI Ramjee Singh deposed about the recovery of the robbed articles from both the accused persons but the complainant, who is the main witness and owner of his articles has not supported the case of the prosecution regarding recovery of the robbed articles in his presence. During cross-examination by the Ld. Defence Counsel, PW4 and PW7 deposed that public persons were passing from the place of arrest of the accused and place of recovery. However, neither any public person was made as a witness nor examined by the prosecution except the complainant PW1, who has turned hostile. PW 4 in cross examination deposed that public persons were passing from the place of arrest of accused persons and place of recovery. He further deposed that IO had Digitally signed by VINAY VINAY KUMAR KUMAR KHANNA KHANNA Date:
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though requested public persons to join investigation, but none of them agreed, however, no notice was given to any of them.
20. Since the only public witness i.e. complainant, on whose statement Ex. PW 1/A, present case FIR was registered, has not supported the version of the prosecution even qua recovery of robbed articles or weapon of offences, from either of the accused persons, this court is of the considered opinion that prosecution has failed to establish charges u/s 411 IPC against accused persons beyond the shadow of resonable doubt.
21. To sum up, this court finds that the prosecution has failed to bring home the guilt of both the accused for the alleged charges beyond shadow of reasonable doubt. The accused Deepak @ Kallu and Sumit, are therefore, acquitted for the offence punishable u/s 392/397/506/411/34 IPC, for which they were charged.
22. Bail bond of accused Sumit stands cancelled and his surety is discharged. Accused Deepak @ Kallu is in JC. He be released from jail, if not required to be detained in jail in any other case. Documents of the sureties, if any retained on record, be released to them, on an appropriate application being moved by them. Case property is forfeited to the Sate, to be disposed of, as per rules. Digitally signed by VINAY VINAY KUMAR KUMAR KHANNA KHANNA Date:
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23. Both accused are directed to furnish fresh personal bond in the sum of Rs.20,000/- each, with one surety in the like amount each, as required under Section 481 BNSS 2023.
24. File be consigned to Record Room after compliance of provisions contained in Section 481 BNSS 2023.
Announced in the open court VINAY
KUMAR
Digitally signed
by VINAY
KUMAR
KHANNA
th
today i.e. 16 December, 2024 KHANNA Date: 2024.12.17
16:33:21 +0530
(VINAY KUMAR KHANNA)
Principal District & Sessions Judge (North) Rohini Courts, Delhi FIR No. 476/2023: PS Adarsh Nagar Page 14 of 14