Delhi District Court
State vs Puneet Rana on 26 March, 2012
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE &
ADDL. SESSIONS JUDGE, I/C (EAST), KARKARDOOMA
COURTS, DELHI.
SC No.49/2011
Unique Case ID No.02402R0310652011
FIR No.196/2011
Police Station Gandhi Nagar
Under Section 392/397/411 IPC
State Versus Puneet Rana
S/o Subhash Rana
R/o H.No. 2417, Gali No.9,
Raghubarpura No.II,
Gandhi Nagar, Delhi.
Date of Institution : 08.12.2011
Date of judgment reserved : 15.03.2012
Date of judgment : 26.03.2012
JUDGMENT
Accused Puneet Rana has been sent to face trial by the police of Police Station Gandhi Nagar in FIR No.196/2011 under Section 392/397/411 IPC.
SC No.49/2011 State Vs. Puneet Rana Page 1 of 22 2 Facts, in brief, are that on 13.07.2011, on receipt of DD No.34A Ex.PW4/A regarding stabbing and snatching of Rs. 3,000/ at shop No. 2673, Gali No6, Raghubar PuraII, PW7 SI Asha Ram reached at the spot where Deepak Sikka(PW2) met him but he did not give his statement and DD No.34A was thus kept pending. On 14.07.2011, complainant Deepak Sikka(PW2) came to the PS and made complaint of robbery. He got his statement Ex.PW2/A recorded. In his statement, he has stated that on 13.07.2011 at about 9.45 p.m. when he along with his partner Rajiv Kumar was present at his chemist shop at X/2673, Gali No.6, Raghubar Pura II,Gandhi Nagar, Delhi, accused Puneet Rana whom he knew from earlier, came to his shop and asked for cosmetic items. Since he and his partner were attending to other customers, accused opened the glass of showcase and picked up, shampoo, perfume, soap, cream and after putting the same into a polythene, when he started going, complainant asked for the price of the items taken by the accused, accused said that he would not give any penny. Complainant has also prepared a bill for the goods taken by accused. Accused also took out a knife and took out Rs.3000/ from the pocket of his partner Rajiv Kumar and left the shop. IO (PW7) made endorsement Ex.PW7/A on statement SC No.49/2011 State Vs. Puneet Rana Page 2 of 22 Ex.PW2/A and gave the same to the Duty Officer. On the basis of rukka Ex.PW7/A, Duty Officer WHC Kamlesh (PW5) recorded FIR Ex.PW5/B and made her endorsement Ex.PW5/A on the rukka. IO reached the spot along with the complainant, inspected the spot and prepared site plan Ex.PW7/B. Search for the accused was made but he could not be found.
3 On 15.07.2011, IO(PW7) along with Ct. Satender (PW6) and complainant reached in Gali No 9 and on identification and pointing out of the complainant, he apprehended accused. Accused made disclosure statement Ex.PW2/C. Accused was arrested vide arrest memo Ex.PW2/B and his personal search Ex.PW6/A was conducted. Accused got recovered six articles consisting of Head & Shouldier Shampoo, one perfume Blue Current, one body spray Addiction, one telcom powder Himani Navratan, one Medikar Natural Oil bottle and one Medikar Shampoo collectively proved as Ex.P3 which were stolen from the shop of the complainant. Same were seized vide seizure memo Ex.PW2/D. The complainant had produced two invoices Ex.P1 and Ex.P2 which were taken into possession vide memo Ex.PW2/E. Statements of witnesses were recorded. 4 After completion of the investigation, chargesheet SC No.49/2011 State Vs. Puneet Rana Page 3 of 22 was filed in the Court of Ld. M.M. who after complying with provisions of section 207 Cr.P.C. committed the case to the Court of Sessions which in turn assigned the case to this Court for trial in accordance with law.
5 After hearing Ld. Counsel for the accused and Addl. PP for the State, charges under Section 392/397/411 IPC were framed against accused which read as under: " That on 13.07.2011 at about 09.45 p.m., at shop no. 2673, Gali No.6, Raghubar Pura II, Gandhi Nagar, Delhi, within the jurisdiction of Police Station Gandhi Nagar, you committed robbery of shampoo, perfume, soap, cream from the shop belonging to complainant and his partner Rajiv Kumar and you also committed robbery of Rs.3000/ which you took out from the pocket of Rajiv Kumar and thereby committed an offence punishable under Section 392 IPC and within my cognizance.
Secondly, on the aforesaid date, time and place, you dishonestly retained the robbed property, i.e., Head and Shoulders Shampoo, perfume, body spray, Himani Navratan, a bottle of medicare natural oil, bottle of Medicar shampoo belonging to the complainant and his partner Rajiv Kumar, having reason to believe that the said property was robbed property and thereby committed an offence punishable under Section 411 IPC and within my SC No.49/2011 State Vs. Puneet Rana Page 4 of 22 cognizance.
Thirdly, on the abovesaid date, time and place, while committing robbery in the shop of complainant and Rajiv Kumar and also on the person of Rajiv Kumar, you used a deadly weapon, i.e., knife and thereby committed an offence punishable under Section 397 IPC and within my cognizance.
6 Accused pleaded not guilty to the charges and claimed a trial.
7 In order to prove its case, prosecution has examined seven witnesses. PW2 Deepak Sikka is the complainant whereas PW3 Rajeev Kumar is his partner. PW1 Ct. Satender had handed over copy of the FIR and rukka to the IO after registration of the FIR. PW4 HC Salunkhe Narayan had recorded DD No.34A Ex.PW4/A. PW5 WHC Kamlesh was duty officer who had recorded FIR. PW6 Ct. Satender remained associated with the IO SI Asha Ram (PW7) in the investigation of the present case.
8 After completion of prosecution evidence, statement of accused under section 313 Cr.P.C. was recorded in which he has denied the case of the prosecution in toto. He has stated that he was called to the Police Station where he was made to sign certain blank papers. He has stated that present case is a false case and he has been SC No.49/2011 State Vs. Puneet Rana Page 5 of 22 falsely implicated. However, he opted not to lead evidence inhis defence.
9 I have heard. Ld. Addl. PP for the State as well as Ld. counsel for accused. I have meticulously gone through their submissions and material available on record.
10 Ld. Counsel for the accused has argued that prosecution has failed to prove its case against accused as both complainant Deepak Sikka as well as his partner Rajeev Kumar have turned hostile and did not support its case. It is further argued that there is no other evidence on record which connects accused with commission of the offence in the present case, therefore, accused is entitled for acquittal. On the other hand, Ld. Addl PP for the State has argued that there is apart from evidence of complainant and another independent witness, there is evidence on record which goes to prove case against the accused. It is further argued that prosecution has proved its case against the accused.
11 The case of the prosecution is entirely based on the testimony of the complainant (PW2) and his partner (PW3). PW2 Deepak Sikka is the complainant. In his deposition, he has testified that he was running a Medical Store in the name of Shri Ram Medical SC No.49/2011 State Vs. Puneet Rana Page 6 of 22 Store at X/2673, Gali No.6, Raghuwar PuraII, Gandhi Nagar, Delhi. He has deposed that he did not remember the exact date but it was in the month of July, 2011, at about 10.00 p.m. when he along with his partner Rajeev Kumar was present at the Medical Store. He has testified that they were attending to the customers when one boy came and asked for Deodrant. This witness asked that boy to wait for sometime but he did not do so and opened the showcase and started taking out perfume, hair oil and other articles. That boy kept those articles in a bag and moved back. When they asked for the payment from that boy, he refused to pay and started quarreling with them. This witness has stated that there was no electricity in the vicinity at that time. According to this witness, that boy took out some money from the pocket of his parnter Rajeev and when they tried to stop that boy, he took out knife, pointed it towards them and ran away with the articles and cash. He closed the shop and returned back to his house. He made a call to police at No.100. He again reached at the Medical Store and police had also reached there. His statement Ex.PW2/A was recorded on the next date. He has clarified that boy who robbed was not present in the Court.
12 This witness was declared hostile by the prosecution SC No.49/2011 State Vs. Puneet Rana Page 7 of 22 and was cross examined by Ld. Addl PP for the State. In his cross examination by Ld. Addl PP, he admitted that arrest memo Ex.PW2/B, disclosure statement Ex.PW2/C, seizure memo of the articles Ex.PW2/D and seizure memo of retail invoice Ex.PW2/E bear his signatures. He has denied that police official had prepared site plan at his instance. He has also denied having stated to the police that IO had made search of accused Puneet Rana but he could not be found. He has denied having named accused Puneet Rana in his statement Ex.PW2/A. He has denied having stated to police that he had prepared invoice regarding the material purchased by him. He has denied having stated to the police that amount of Rs.3,000/was taken out from his pocket of his partner by accused by using knife. He has also denied having accompanied the police on 15.07.2011 and having pointed out accused in Gali No.9. He has denied having stated to the police that accused made disclosure statement in his presence. However, he has admitted that invoices Ex.P1 and Ex.P2 are in the name of Puneet Rana and were handed over by him to the police. He has stated that he did not know accused Puneet Rana as he had not seen him earlier. He has denied having compromised with accused and this is why he was not identifying the accused. Robbed articles SC No.49/2011 State Vs. Puneet Rana Page 8 of 22 such as Shampoo, perfume, body spray, Himani Navratan Powder, Medicar Natural oil bottle and shampoo collectively proved as Ex.P3 were shown to the witness and he stated that they did not belong to him and were not the same which were taken away from the shop. 13 In his cross examination by ld. Counsel for the accused, he has admitted that police officials had obtained his signatures on all the papers in Police Station. He has also admitted that contents of documents which he signed were not read over to him. He has also stated that invoices Ex.P1 and Ex.P2 do not bear the name of the customer and that name of the customer was filled up later on at the instance of police as Puneet Rana. 14 Therefore, there is nothing in the testimony of the complainant (PW2) to link the accused with the commission of crime of the present case. In his crossexamination, complainant (PW2) has specifically denying having made statement Ex.PW2/A to the police. He has also denied that he knew the accused from earlier or that accused came to his shop and took away the cosmetic articles forcibly without making payment thereof. He has also denied that accused took out Rs.3,000/ from the pocket of his partner Rajeev (PW3) by showing knife to them. He has also denied that accused threatened SC No.49/2011 State Vs. Puneet Rana Page 9 of 22 them. The complainant (PW2) has not stated anything against the accused. As regards identification of cosmetic articles collectively proved as Ex.P3, the complainant (PW2) has specifically stated that these articles do not belong to him and are not the same which were taken away from his shop. As regards invoice Ex.P1 and Ex.P2 bearing the name of customer, complainant (PW2) has clarified in his crossexamination by ld. Defence counsel that name of the customer was filled up later on at the instance of police as Puneet Rana. He has also stated that police officials had obtained his signatures on all the papers in the police station and that contents thereof were not read over to him. In view of this explanation of complainant (PW2), signatures of the complainant on the memos such as arrest memo, disclosure statement, seizure memo of cosmetic articles are of no help to the prosecution. Therefore, the testimony of the complainant completely exonerates the accused as the perpetrator of the crime in the present case.
15 PW3 Sh. Rajeev Kumar has also testified on the similar lines of complainant (PW2) to the effect that he is partner of Shri Ram Medicose at Raghuwar Pura, Gandhi Nagar. He has testified that in the month of July, 2011 at about 10.00 p.m., he was SC No.49/2011 State Vs. Puneet Rana Page 10 of 22 present with his partner in his medical store and were attending to their customers. In the meantime, one boy came there and asked for Deodrant and when they asked him to wait for few minutes as they were busy in attending other customers. In the meantime, that boy took out some cosmetic articles from the showcase and put up in a bag and started going away. When they stopped him that boy took out the knife and pointed out the same towards him and took out Rs. 3000/ from his pocket and threatened him while going away. He informed the police and thereafter statement of his partner Deepak was recorded. His statement was also recorded. He has clarified that the boy who robbed him was not present in the Court.
16 This witness was declared hostile by the prosecution and was crossexamined by Ld. Addl. PP for the State. He has admitted that the incident took place on 13.7.2011. He has denied having stated to the police that it was Puneet Rana who had robbed him at the point of knife and that they knew him earlier. He has also denied having stated to the police that accused had taken out cosmetic articles consisting of shampoo, perfume, oil etc. or that his partner had asked about the payment of cosmetic articles, accused refused to make payment and then Deepak prepared invoice to this effect. He has SC No.49/2011 State Vs. Puneet Rana Page 11 of 22 denied having stated to the police that they had made call to police at number 100 and thereafter returned their houses and on 14.7.2011 they again informed the police and then his statement was recorded. He has denied having stated to the police that legal action might be taken against accused Puneet Rana. He was confronted with his statement Ex.PW3/A which he denied having made to the police. 17 The perusal of testimony of PW3 Rajeev Kumar also does not show anything against the accused as he has denied having made statement Ex.PW3/A to the police. Though, he has admitted that the incident of robbery took place at his shop, but he has not identified accused Puneet Rana as the person who robbed them on the point of knife. He has also denied that accused had taken away cosmetic articles or that when he was asked for the payment, he refused to pay the same. He has also denied that he disclosed the name of accused to the police. So, from the testimony of this witness also, the prosecution does not get any help to link the accused with the present case. Though, the prosecution has established the incident of robbery with the complainant and his partner, but they have failed to bring anything on record to connect the accused with the same. SC No.49/2011 State Vs. Puneet Rana Page 12 of 22 Identity of accused 18 The identity of accused being the robber is in dispute. Identification of accused has not been established from the testimony of complainant (PW2) as well as another eye witness Rajeev Kumar (PW3) in the Court. In their entire testimony, both these witnesses have stated that accused is not the person who robbed them or their articles and money on the day of incident. They have stated that there was some another person who robbed them and not the accused. These circumstances show that accused has not been identified by the complainant as well as by PW3 as robber. Both these witnesses have categorically stated that accused was not the person who robbed their articles and money on the point of knife. 19 In the judgment in case titled Prem Singh vs. State of (N.C.T.) of Delhi (Crl. Appeal No.589 of 2002 decided by Hon'ble Supreme Court on 24.04.2009) it was held that when the witness/ injured could not identify the accused to be the person who fired at him, accused could not have been convicted for offence charged. In the present case also, the identity of accused being the perpetrator of crime has not been established. Both the eye witnesses/victims i.e. complainant (PW2) as well as Rajeev Kumar (PW3) have not SC No.49/2011 State Vs. Puneet Rana Page 13 of 22 identified accused as the robber.
20 In another judgment in case titled Chellappan Mohandas and others vs. State of Kerala AIR 1995 SC 90, the conviction of appellants was set aside as the eye witnesses turned hostile and gave a distorted version. In another case titled State of UP vs. Shri Krishan AIR 2005 SC 762, the Hon'ble Supreme Court has upheld the acquittal of accused persons while observing that eye witnesses of the incident have turned hostile and it was not a case to interfere with an order of acquittal. The ratio of above authorities is squarely applicable to the facts of the present case as both the eye witnesses i.e. complainant (PW2) and Rajeev Kumar (PW3) have turned hostile and have not deposed anything against the accused. 21 Thus, the prosecution has failed to establish the identity of accused beyond reasonable doubt being robber who committed robbery of articles and money of complainant (PW2) and Rajeev Kumar (PW3).
Recovery of robbed articles 22 Case of the prosecution is that accused was arrested on 15.7.2011 and made disclosure statement Ex.PW2/C. It is alleged that in pursuance of disclosure statement, accused got recovered SC No.49/2011 State Vs. Puneet Rana Page 14 of 22 robbed articles i.e. Shampoo bottles, perfume bottle, body spray, telcom powder and Oil bottle which have been collectively proved as Ex.P3.
23 The complainant (PW2) was confronted with the alleged recovered robbed articles Ex.P3 during his crossexamination by Ld. Addl. PP for the State. After seeing those articles, complainant (PW2) has categorically stated that the said articles does not belong to him and were not the same which were taken away from his shop. Thus, the alleged recovered articles cannot be said to be robbed articles as the victim of the crime has not identified the same to be robbed from his shop.
24 So far as recovery of these articles Ex.P3 at the instance of accused is concerned, the investigating officer (PW7) has stated that he along with Ct. Satender (PW6) went to the house of accused along with accused and he got the robbed articles recovered from his house. Ct. Satender (PW6) during his crossexamination has admitted that when they entered the house of accused, his mother was present there. He further stated that accused got recovered those articles from the drawing room itself. He also stated that public persons were passing in the gali at the time of arrest of accused, SC No.49/2011 State Vs. Puneet Rana Page 15 of 22 however no one was asked to join the investigation. 25 Case of the prosecution is that the accused was arrested from the street near his house and then he got recovered alleged robbed articles from there. Ct. Satender (PW6) was the witness to the said recovery who has categorically stated that public persons were passing from the gali, but no one was asked to join the investigation. As per this testimony of PW6, no effort was made by the investigating officer to join any public person in the recovery of alleged robbed articles. It is even admitted case of the prosecution that when the said articles were got recovered by accused from his house, his mother was present inside, but the investigating officer (PW7) even not made her witness to rule out any foul play. 26 In similar circumstances, the Division Bench of our Hon'ble High Court in case titled, Chander Pal Vs. State (Reported in 1999 (1) RCR (Criminal) 150) has held that if independent witnesses are not associated in the recovery in pursuance of provisions of Section 27 of the Indian Evidence Act, then such recovery is not reliable. In another case reported in State Vs. Ramesh (Reported in 1989 II A.D. (Delhi ) 42), the Hon'ble Division Bench has held that if public persons are not associated in the SC No.49/2011 State Vs. Puneet Rana Page 16 of 22 recovery then the provisions of Section 100 of Cr. PC are not followed and such recovery becomes doubtful.
27 In the present case also, the public persons, though available, were not associated by the investigating officer (PW7) in the recovery of alleged articles at the instance of accused. Even the mother of the accused who was present inside the house was not made witness to the alleged recovery of robbed articles. So, the prosecution has failed to establish the recovery of alleged robbed articles at the instance of accused beyond reasonable doubt. Even, the said articles being robbed articles have not been identified by the complainant (PW2) during his testimony in the Court.
28 Even the making of statement Ex.PW2/A by the complainant (PW2) which was the basis of registration of FIR, is also in doubt in view of the fact that complainant has categorically stated that he had not gone through his statement Ex.PW2/A nor contents of the same were read over to him before putting signatures on it. He also stated that the said statement was not read over to him by the police official before obtaining his signatures on the same. He has even gone to the extent of saying that police officials obtained his signatures on some papers in the Police Station. When the making of SC No.49/2011 State Vs. Puneet Rana Page 17 of 22 statement Ex.PW2/A which is the basis for registration of FIR is itself in doubt, it casts a doubt also on the genuineness of the case set up by the police.
Use of weapon and Nonrecovery of weapon 29 It is also alleged against accused that he used a deadly weapon i.e. Knife at the time of commission of robbery of the articles as well as money from complainant and Rajeev Kumar. 30 The complainant (PW2) as well as Rajeev Kumar (PW3) have not identified accused as robber in the Court. They have not stated anything against the accused that he was the person who, on the day of incident, robbed them of their money and articles lying in the shop. Both these witnesses have not identified accused being the robber. They have also not stated that any knife was used by accused at the time of committing alleged robbery.
31 It is also a fact that Investigating Officer has not effected recovery of weapon of offence i.e. knife which was allegedly used by accused at the time of alleged robbery. In the absence of recovery of weapon of offence, it can not be said that accused used the deadly weapon at the time of alleged offence when both the eye witnesses i.e. complainant (PW2) as well as Rajeev Kumar (PW3) SC No.49/2011 State Vs. Puneet Rana Page 18 of 22 have not identified accused to be the robber. Nonrecovery of weapon of offence also proved fatal to the case of prosecution. 32 In similar circumstances, in the judgment titled Siri Om Vs. State of Haryana (1998 (2) RCR (Criminal) 333), it was held that Section 397 IPC is divided into two parts. It was observed that if a robbery or dacoity is committed with a deadly weapon and that deadly weapon is not recovered or produced, the ingredients of Section 397 would not be attracted but if it is established on the record that the injured person had suffered grievous hurts or an attempt was made to cause his death, the production of weapon is not required. 33 In the present case, the weapon of offence i.e. Knife allegedly used by accused in the commission of alleged robbery has not been recovered by the police. It is also not the case of prosecution that any hurt was caused by accused with such weapon on the person of complainant (PW2) or his partner Rajeev Kumar (PW3). The complainant (PW2) as well as another eye witness Rajeev Kumar (PW3) even had not identified accused as robber who used any deadly weapon on them at the time of alleged robbery. In the absence of identification of accused and in view of nonrecovery of weapon of offence, I am of the considered opinion that the prosecution has failed SC No.49/2011 State Vs. Puneet Rana Page 19 of 22 to make out any case against accused beyond reasonable doubt that any weapon of offence was used by him or its recovery was effected at his instance.
Conclusion 34 The identity of accused being robber has not been established in the Court. The complainant (PW2) as well as another eye witness to the incident Rajeev Kumar (PW3) have stated that accused was not the person who robbed them of their articles and money on the day of incident. They have not identified accused as robber. Therefore, the identity of accused being robber has not been established.
35 The recovery of alleged robbed articles has also not been established in the Court. It is the case of prosecution that accused got recovered robbed articles from his house. But it came on record that although public witnesses present in the vicinity, no effort was made by the investigating officer to get them joined in the recovery of said articles. It has been stated by the recovery witness Ct. Satender (PW6) himself that mother of the accused was also present inside the house at that time, but she has also not been made a witness to the alleged recovery of articles. Therefore, the recovery of SC No.49/2011 State Vs. Puneet Rana Page 20 of 22 alleged robbed articles at the instance of accused is in doubt and the prosecution has failed to prove its recovery beyond reasonable doubt. 36 The prosecution has failed to establish on record beyond reasonable doubt that accused was present at the spot at the time of incident. The case of the prosecution rests upon the testimony of complainant (PW2) and Rajeev Kumar (PW3) who failed to identify accused as the culprit who robbed them on the day of incident. No other material has been brought on record by the prosecution to connect accused with the commission of robbery of cosmetic articles and money from complainant (PW2) and Rajeev Kumar (PW3) on the day of incident. The prosecution has also failed to prove beyond reasonable doubt use of deadly weapon by accused at the time of alleged robbery. No incriminating evidence has been produced by the prosecution to connect the accused with the robbery and use of deadly weapon.
37 Even the prosecution has failed to effect the recovery of knife which was allegedly used by accused at the time of commission of alleged robbery. No effort has shown to have been made by the investigating officer for the recovery of weapon of offence.
SC No.49/2011 State Vs. Puneet Rana Page 21 of 22 38 In view of the aforementioned facts and circumstances of the present case that, I am of the considered opinion that the evidence produced by the prosecution does not lead to conclusion that accused robbed the cosmetic articles and money from the complainant (PW2) and Rajeev Kumar (PW3) on the day of incident or that accused used any deadly weapon at the time of alleged robbery. Consequently, while extending benefit of doubt, accused Puneet Rana is hereby acquitted from the charge framed against him under Section 392/397/411 IPC.
39 Accused is directed to comply with the provisions of Section 437A of Cr.P.C.
Announced in the open Court ( P.S. TEJI )
Dated: 26.03.2012 District Judge and
Addl. Sessions Judge, I/C (East)
Karkardooma Courts : Delhi
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