Delhi District Court
State vs . Babloo @ Tilwala on 23 April, 2013
FIR No. 39/2011
P.S.: Gokalpuri
U/s: 392/394 of IPC
IN THE COURT OF SH. JITENDRA SINGH : METROPOLITAN
MAGISTRATE, NORTH-EAST04, KARKARDOOMA COURTS
DELHI.
FIR No. 39/2011
PS: Gokal Puri
U/s. 392/394 IPC
Case ID No. 02402R0139532011
Dated: 23.04.2013
STATE VS. BABLOO @ TILWALA
Date of Institution : 06.05.2011
Date of Commission of offence : 04.02.2011
Name of the Complainant : Sh. Akash Sharma
Name parentage and address
of the accused : Babloo @ Tilwala @
Rauf S/o Sh. Ashiq Ali,
R/o; H.No. 995, Sonia
Nagar, Baihata, Hazipur,
Loni, Ghaziabad, UP.
Offence Complaint of : U/s. 392/394 IPC
Plea of the accused : Pleaded not guilty.
Final Order : Acquitted.
Judgment reserved on : 23.04.2013
Date of judgment : 23.04.2013
JUDGEMENT
BRIEF FACTS AND REASONS FOR DECISION
1. Vide this judgment, I shall dispose off, the above captioned case FIR No. 39/2011. The case of the prosecution is that on 04.02.2011, at about 11.00 PM at Gokalpuri Bus Stand, below Page 1 of 6 FIR No. 39/2011 P.S.: Gokalpuri U/s: 392/394 of IPC Gokalpuri Flyover, Wazribad Road, Delhi, within the jurisdiction of PS Gokalpuri, accused alongwith his associate Nadeem (absconded) in furtherance of their common intention, committed robbery of the wallet containing Rs. 1840/- and some visiting cards which was kept in the pocket of Complainant Sh. Akash and also voluntarily caused simple hurt to the Complainant and thereby accused committed an offence of robbery committed on highway between sunset and sunrise and voluntarily causing hurt in committing robbery, punishable under Section 392/394 IPC. On the complaint of the complainant the present FIR was registered.
2. On conclusion of the investigation a charge sheet was filed against the accused under Section 392/394 IPC. After necessary compliances a charge was framed against the accused U/s. 392/394 IPC to which accused pleaded not guilty and claimed trial.
3. To bring home the guilt against the accused, the prosecution examined two witness in total. The prosecution has examined Sh. Akash Sharma as PW-1, who has turned hostile and HC Rajender Singh as PW-2, who proved only FIR. The remaining witnesses were formal in nature, therefore prosecution evidence was closed.
4. Statement of accused U/s. 313 Cr.PC. has been recorded separately, in which the accused does not want to lead his defence evidence. Final arguments have been heard and record has been meticulously perused.
5. During the course of arguments, Ld. Defence Counsel has submitted that the witnesses, who have been examined by the Prosecution are not sufficient to convict the accused. It is further submitted that the PW-1 Sh. Akash Sharma has turned hostile.
6. For proving the offence U/s. 392/394 IPC, the prosecution is required to prove the following:-
(i) that the accused committed theft;Page 2 of 6 FIR No. 39/2011
P.S.: Gokalpuri U/s: 392/394 of IPC
(ii) that he caused or attempted to cause to some person (a) death, hurt or wrongful restraint; or (b) fear of instant death, or of instant hurt, or if instant wrongful restraint:
(iii) that he did as above (a) in committing such theft; or (b) in order to commit such theft, or (c) in carrying away, or attempting to carry away, the property obtained by such theft;
(iv) that the acted as in (ii) voluntarily.
(v) that the accused committed extortion;
(vi) that he was, at the time of committing it, in the presence of the person so put in fear;
(vii) that he committed it by putting that person or some other person in fear of instant death, or of instant hurt, or of instant wrongful restraint;
(viii) that he thereby induced the person so put in fear to deliver up then and there the thing extorted.
(ix) that the accused, or some one jointly concerned with him, committed or attempted to commit robbery;
(x) that the accused, or such other person, voluntarily caused hurt in doing so.
7. It is pertinent to mention here that the star witness of the Prosecution in the instance case is Sh. Akash Sharma, who is projected as eye witness to the alleged accident. However PW-1 has turned hostile. The relevant extract of the same is reproduced below for ready reference:-
" On 04.02.2011, I was residing at A-2/25, Gali No. 3, Kabir Nagar, Delhi with my family. On that day, at about 10.30/11.00 PM, I was going to my house at Kabir Nagar from Gokalpuri. I reached near Bus Stands under the Flyover Gokalpuri, and was waiting for the conveyance. At that time, two persons came on one motorcycle and they asked me way to go Shahdara. I told them the way to go to Shahdara. After that they asked me what do you have, to which I replied that I have nothing. After that, the person who was riding the motorcycle caught hold of my hand and the pillion rider started scuffling with me and forcibly taken out my purse from the back pocket of wearing jeans. The person who was riding the motorcycle caused injury on my hand by something. I saw here and there, but there was nobody on the road at that time. The pillion rider was taking the sane of the rider of the motorcycle as Babloo and his fade was acquainted to me and I told him that their faces are known to me, but rider of the motorcycle said that he does not know me. I somehow got myself released and started running away from Page 3 of 6 FIR No. 39/2011 P.S.: Gokalpuri U/s: 392/394 of IPC the spot, but the pillion rider chased me and gave me a blade blow on my leg. After that both the persons fled on their motorcycle. My wallet had Rs. 1840/-, my driving licence and some visiting cards. After that I went to Police Station, where I met one police official, who suggested me first I should go to Hospital and they will come in the Hospital to record my statement. I went to GTB Hospital, where I received medical treatment and after that I went to my house. On 06.02.2011, I again went to Police Station Gokal Puri, where my statement was recorded, which is Ex. PW1/A, which bears my signature at point A. I told the police officials about the spot of incident. On 10.02.2011, the police officials told me that the accused Babloo has been arrested in the present case and I was informed that a sum of Rs. 400/- has been recovered from him. He was arrested in the present case vide arrest memo Ex. PW-1/B and he was personally searched vide personal search memo Ex. PW1/C, which bears my signature at point A. The seizure memo of Rs. 400/- is Ex. PW1/D, which bears my signature at point A. The accused who was riding the vehicle is not present in the court today. Thereafter the Ld. APP sought permission to cross examine this witness, which was allowed. It is correct that I used to go to Park in Welcome with my friends. It is wrong to suggest that the accused present in the court today used to play cricket and Gulli-Danda in the said Park. It is correct that when the accused persons robbed me I recognized the rider of the motorcycle as Babloo @ Tilwala as he used to come to play Gulli0Danda and cricket in the park. It is further correct that at the time of incident, I had told the accused that I know you, as he used to play in the Park in Welcome, to which he replied that he does not know me. It is wrong to suggest that the accused present in the court today is the same Babloo @ Tilwala, who used to play cricket and Gulli-Danda in the Park and robbed me on the date of incident.
At this stage, statement Mark Z has been read over to the witness, to which witness he had stated that he had never made such statement to the Police. Confronted with the statement Mark Z, where it is so recorded. It is wrong to suggest that on 10.02.2011, I came to know that accused Babloo @ Tilwala, who had committed the robbery with me on 04.02.2011 was standing near the Gole Chakkar, Loni Road, Page 4 of 6 FIR No. 39/2011 P.S.: Gokalpuri U/s: 392/394 of IPC Delhi. Confronted with the statement Mark Z from point A to A-1, where it is so recorded. It is further wrong to suggest that I immediately went to PS Gokalpuri and I alongwith the Police went to Loni Gole Chakkar, from where the accused Babloo @ Tilwala was arrested. Confronted with the statement Mark Z from point B to B-1, where it is so recorded. It is wrong to suggest that Rs. 400/- were recovered from the accused Babloo @ Tilwala in my presence. Confronted with the statement Mark Z from point C to C-1, where it is so recorded. It is wrong to suggest that the accused made disclosure statement in my presence. I have studied till 08th Class and I am a driver. I know read and write Hindi. I put my signature on the Ex. PW1/B, PW1/C and PW1/D in the Police Station on the instructions of the Police officials. It is wrong to suggest that the accused, who is present in the court today was arrested from Loni Gole Chakkar on my instance or that I am deposing falsely about the fact that I put the signature on the Ex. PW1/B, PW1/C and PW1/D in the Police Station. It is wrong to suggest that I was aware about the contents of Ex. PW1/B, PW1/C and PW1/D. It is wrong to suggest that I am not intentionally identifying the accused as I have compromise the matter with him or that I have been won over by the accused. It is wrong to suggest that I am deposing falsely that the accused is not the same person, who committed robbery with me on 04.02.2011.
The said witness has not supported the case of the prosecution and has turned hostile. The witness was cross examined by Ld. APP for the State.
8. The complainant Sh. Akash Sharma, who has been examined as PW-1 has already turned hostile and has not deposed anything incriminating against the accused despite being cross examined by the Ld. APP for the State. The remaining witnesses were merely police witnesses and doctor witnesses, who were formal in nature.
9. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from 'may have' to 'must Page 5 of 6 FIR No. 39/2011 P.S.: Gokalpuri U/s: 392/394 of IPC have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
10. In view of the foregoing reasons, I hold that the prosecution has failed to prove the charge against the accused, beyond reasonable doubt. The benefit of any lacunae, left in the investigation, has to be given to the accused. For the foregoing reasons, accused is entitled to acquittal. Accused is therefore acquitted.
Announced in the open court (JITENDRA SINGH) today itself. METROPLITAN MAGISTRATE KARKARDOOMA COURTS/DELHI Page 6 of 6 FIR No. 39/2011 P.S.: Gokalpuri U/s: 392/394 of IPC Page 7 of 6 FIR No. 39/2011 P.S.: Gokalpuri U/s: 392/394 of IPC Page 8 of 6