Delhi District Court
State vs Karta Ram@ Om Praksh on 21 September, 2023
IN THE COURT OF MS. SHIVALI SHARMA, ADDITIONAL
SESSIONS JUDGE-03: WEST DISTRICT, THC, DELHI.
CNR No. DLWT01-000721-2012
SC No. 57574-2016
State Vs. Karta Ram @ Om Prakash
FIR No. 221-2012
U/s. 393/398/120B/34/468/471 IPC and 25/54/59
Arms Act
PS: Punjabi Bagh
JUDGMENT
1. Sr. No. of the case : 57574-2016
2. Date of Committal to Sessions : 12.12.2012
3. Name of the complainant : Rajender Gopal
4. Date of Commission of Offence : 03.07.2012
5. Name and Parentage of Accused :1. Karta Ram @
Om Prakash S/o
Chopa Ji R/o VPI
Kodi, PS Bhinmal,
District Jalore.
2. Pawan Kumar
Yadav S/o Baijnath
Ray R/o VPO Baghi
Harkpura, PS
Taraima, District
Chhapra, Bihar.
3. Rajender Prasad
Vishwakarma @
Dube S/o Jitender
Narain Vishwakarma
R/o VPO Bhavipur,
PS Ashpur Devsara,
Teh Patti, District
Pratapgarh, UP.
6. Offence complained of : u/s
393/398/34/120B/468/471
IPC and 27/54/59
Arms Act
SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 1/33
7. Offence charged : u/s 120B r/w
393/398 IPC against
all the accused
persons. U/s
393/398/34 IPC
against accused Karta
Ram @ Om Prakash
and Pawan. U/s 27
Arms Act and
468/471 IPC against
accused Karta Ram
@ Om Prakash and
u/s 25 Arms Act
against accused
Pawan Kumar.
8. Plea of Guilt : Not guilty.
9. Final Order : All accused are
acquitted for offences
charged.
10. Date on which Order Reserved : 18.09.2023
11. Date on which Order Announced : 21.09.2023
BRIEF FACTS AND REASONS FOR DECISION:
1. The case of the prosecution as per original tehrir Ex. PW-
1/A is that on 03.07.2012 at about 06:30 PM when complainant Rajender Gopal along with his brother Madan Lal Gopal riding on his motorcycle no. DL 1SU 9484 were passing through cement siding and going towards railway parking, then at about 06:45 PM, just prior to the parking, near railway quarters, one motorcycle bearing registration no. DL 8S AU 3031 color silver make Pulsar came near them on which two persons were riding while wearing helmets. They made the motorcycle of the complainant stop and started abusing him and his brother. They tried to SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 2/33 snatch the bag being carried by complainant's brother. One of the said persons pointed a pistol towards the complainant. The complainant caught hold of the pistol to protect himself. The brother of the complainant also did not leave his bag. When the offenders could not rob the bag of the complainant, they left their motorcycle at the spot and fled away from there.
2. On the basis of this complaint, present FIR was registered against unknown persons u/s 393/398/34 IPC and Section 25/27 Arms Act.
3. The motorcycle and pistol with 6 live cartridges left at the spot by the offenders were seized by the police. The accused persons namely Karta Ram and Pawan were traced through the motorcycle left at the spot and were arrested in the present case on 06.08.2012. On their disclosure, accused Rajender Prasad was arrested in the present case.
4. After investigation, all three accused persons were chargesheeted u/s 393/398/120B/468/471/25 Arms Act. Sections 468 and 471 IPC were attracted as fake driving license in the name of Om Prakash bearing the photograph of accused Karta Ram was found from his possession. CHARGE:
5. Detailed arguments were heard on charge from Ld. Counsels for accused and Ld. Additional PP for State. Vide order dated 02.04.2013, charge u/s 120B IPC r/w Section 393/398 IPC was framed against all the accused persons namely Karta Ram @ Om Prakash, Pawan Kumar Yadav SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 3/33 and Rajender Prasad Vishwakarma @ Dubey. Charge u/s 393/398 IPC r/w Section 34 IPC was framed against accused Karta Ram @ Om Prakash and Pawan Kumar Yadav. A charge u/s 27 Arms Act and u/s 468/471 IPC was also framed against Karta Ram @ Om Prakash.
6. Vide order dated 17.03.2023, an additional charge u/s 25 Arms Act was also framed against accused Pawan Kumar Yadav.
PROSECUTION EVIDENCE:
7. The prosecution led evidence and examined 23 witnesses in all to bring home the guilt against the accused persons.
8. PW-1/Complainant Rajender Goyal and PW-5 Brother of the complainant Madan Lal Goyal are two primary witnesses of the prosecution case being the victims and the sole eye-witnesses to the alleged incident. They deposed in consonance with testimony of each other.
9. PW-1/Complainant Rajender Goyal deposed in consonance with his complaint/Ex. PW-1/A. He stated that at the time of the incident, both the accused persons were wearing helmet and he could not see their faces. He also deposed that their motorcycle and motorcycle left by the accused persons were seized vide memo Ex. PW-1/B. The police officials prepared sketch of the pistol and live cartridges which is Ex. PW-1/C and seized them vide memo Ex. PW-1/D. He also identified his signatures on site plan Ex. PW-1/E. He identified the case property i.e. pistol which is Ex. P1 and the motorcycle used by the accused persons bearing no. DL 8S AU 3031.
SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 4/3310. However, he failed to identify any of the accused persons stating that since they were wearing helmets at the time of the incident, he could not see their faces.
11. PW-5 Madan Lal Goyal also deposed in consonance with testimony of PW-1 and failed to identify the accused persons as the offenders stating that offenders were wearing helmet at the time of the incident and he had not seen their faces.
12. Both these witnesses were cross-examined by Ld. Additional PP for the State on the point of identification of the accused persons but despite specific suggestions in this regard, they failed to identify the accused persons as the offenders who had tried to rob them.
13. They were not cross-examined on behalf of the accused persons.
14. PW-2 HC Mahavir Singh is a formal witness being the Duty Officer who proved the registration of FIR as Ex. PW-2/A and the endorsement made on the rukka as Ex. PW-2/B.
15. He was duly cross-examined on behalf of the accused persons.
16. PW-3 SI Jagdish Prasad is the first IO and PW-4 Ct.
Amit Kumar is the Constable who had accompanied PW- 3 to the spot. Their depositions are in consonance with each other.
17. They deposed that on 03.07.2012, on receipt of DD No. 52A (Ex. PW-3/A) and 54A (Ex. PW-3/B), they went to the spot i.e. Cement siding, near railway quarters, Punjabi SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 5/33 Bagh. Complainant Rajender Goyal and his brother Madan Lal Goyal met them at the spot. Complainant produced one pistol and one motorcycle make Pulsar registration no......3031. They informed the IO about the incident who recorded the statement of complainant Ex. PW-1/A. IO/PW-3 checked the pistol which was an automatic pistol made in USA having 6 live cartridges in the magazine. IO prepared the sketch of the pistol and live cartridges which is Ex. PW-1/C, filled up the FSL form and seized them vide memo Ex. PW-1/D after sealing it with the seal of JP.
18. IO also seized the motorcycle vide memo Ex. PW-1/B.
19. IO/PW-3 made the rukka Ex. PW-3/C and got the FIR registered through PW-4. He prepared site plan Ex. PW- 1/E. Thereafter, he made enquiry regarding the owner of the motorcycle on which it was revealed that motorcycle was registered in the name of one Bhavya Behrani @ Sunny. The registered owner was joined in the investigation and he produced original delivery receipts of the motorcycle as he dealt in sale purchase of the vehicle. IO/PW-3 seized the delivery receipt vide memo Ex. PW- 3/D. During further investigation, one Pawan Kumar Dhingra was joined in the investigation and he produced photocopy of delivery receipt of motorcycle no. 3031 and installment slips which were seized vide memo Ex. PW- 3/E. On 07.05.2012, the investigtion was transferred from IO/PW-3.
20. PW-3 and PW-4 identified the motorcycle Ex. P-2 and pistol and cartridges Ex. P-1(colly).
SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 6/3321. PW-3 was not subjected to cross-examination.
22. PW-4 was duly cross-examined on behalf of accused Rajender and Karta Ram but was not cross-examined on behalf of accused Pawan.
23. PW-6 Bhavya Behrani deposed that he is doing the business of sale and purchase of two-wheelers in the name of M/s Super Automobile. In April, 2012, one pulsar motorcycle color silver registration no. DL 8S AU 3031 was purchased by him from finance company i.e. Om Leasing and Finance Company for a sum of Rs. 28,000/-/ He received the receipts of installment paid against the said motorcycle by original purchaser Mohd. Shakir which are Ex. PW-6/1 to Ex. PW-6/10. He sold this motorcycle to Om Prakash and Pawan Yadav for a sum of Rs. 40,000/-. He had business dealing with Om Prakash and Pawan Yadav as they were bringing customers to him for sale and purchase of vehicles. He handed over the cash receipt issued by the Finance company (Mark A), delivery receipt (Mark B), Election ID card given by Om Prakash and Pawan Yadav (Mark C) to the IO.
24. He also handed over original delivery receipts of motorcycle no. DL 8S AQ 7383 in the name of Pawan (Mark PW-6/A1), DL 6S AC 2250 in the name of Om Prakash (Mark PW-6/A2), DL 4S HD 0002 in the name of Pawan Yadav (Mark PW-6/A3) and photocopy of delivery receipt of vehicle no. DL 8S AU 3031 in the name of Om Prakash (Mark PW-6/A4) to the IO.
25. The said documents were seized vide memo Ex. PW-3/D. SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 7/33 He identified accused Pawan Yadav and Om Prakash @ Karta Ram.
26. He was duly cross-examined on behalf of accused Karta Ram and Rajender but was not cross-examined on behalf of accused Pawan Yadav.
27. PW-7 Pawan Dhingra is the owner of Om Leasing and Finance Company. He deposed that on 31.12.2009, he had financed a motorcycle no. DL 8S AU 3031 make Bajaj Pulsar color silver in the name of Mohd. Shakil Shah. It was financed for 21 installments. After paying 10 installments, Mohd. Shakil Shah did not pay further installments despite repeated warnings. Therefore, he took over the possession of the motorcycle on 17.01.2012. He sold this motorcycle to Sh. Bhavya Behrani/PW-6, owner of Super Automobiles for Rs. 28000/-.
28. Police officials met him and made enquiry regarding the said motorcycle. He produced all the documents pertaining to the installment slips of the said vehicle w.e.f. 12.07.2010 to 20.09.2011 (Ex. PW-7/A1 to Ex. PW- 7/A10) and carbon copy of the delivery note (Ex. PW-7/B) which were seized vide memo Ex. PW-3/B.
29. This witness was not cross-examined on behalf of the accused persons.
30. PW-8 Gautam deposed that accused Karta Ram used to work for him in his business of plastic moulding machine around the year 2011. He worked for him for a period of 3- 4 months. Accused Karta Ram had informed him that he was a resident of Rajasthan. On 07.07.2012, he identified SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 8/33 accused Karta Ram when he was brought to him by the police. He did not know anything about the accused.
31. He was declared hostile and cross-examined on behalf of State. In his cross-examination, he denied the suggestion that accused Karta Ram had stated his name as Om Prakash or that he had started living on the upper floor of his house. He admitted that when he had gone to his native village between 28.05.2012 to 06.07.2012, accused Karta Ram had already left from there. He denied the suggestion that accused Karta Ram was also known by name of Om Prakash or was working with him with that name. He also denied the suggestion that he had witnessed the purchase of pulsar motorcycle having registration no. DL 8S AU 3031 by accused Karta Ram.
32. He was not subjected to cross-examination on behalf of accused persons.
33. PW-9 Ct. Balwant Singh and PW-10 HC Naresh Kumar had joined the investigation with IO/SI Sandeep Dabas/PW-20 on 06.08.2012. Their testimonies are in consonance with each other.
34. They deposed that on 06.08.2012, IO/PW-20 received a secret information that the accused persons wanted in the present case can be traced at Kora Colony, Ghaziabad behind Kavita Palace at the house of Gai wala Budiya. After informing the SHO, IO prepared a raiding party consisting of himself, PW-9, PW-10 and Ct. Tasveer. They along with the secret informer went to Kora Colony in a private vehicle.
SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 9/3335. At the instance of the secret informer, they went to the second floor of the house where accused Karta Ram @ Om Prakash was found. IO established the identity of the accused through the photograph fixed on the dossier. Thereafter, accused Karta Ram was apprehended and interrogated. During cursory search of the accused, a fake driving license in the name of Om Prakash Chaudhary bearing the photograph of accused Karta Ram was recovered. During investigation, accused Karta Ram disclosed about his involvement in other robbery cases in respect of which certain recoveries were effected from his house.
36. The fake driving license was seized vide memo Ex. PW-
9/A. He also disclosed about his co-accused Pawan and also got recovered two motorcycles used by him in certain robberies. His disclosure statement Ex. PW-9/B was recorded.
37. Pursuant to his disclosure statement, they went to village Hayatpur Choda near Sector 22, Noida where at the instance of accused Karta Ram, accused Pawan Yadav was apprehended and interrogated vide disclosure statement Ex. PW-9/C.
38. He also got recovered certain money robbed in some other case as well as one stolen motorcycle.
39. Since both accused Karta Ram and accused Pawan Yadav disclosed about involvement in the present case, they were arrested and personally searched in the present case vide memos Ex. PW-9/D to Ex. PW-9/G. SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 10/33
40. They also pointed towards the place of incident vide memos Ex. PW-9/H and Ex. PW-9/J. Thereafter, both of them were taken to PS and put behind bars.
41. PW-9 also deposed that on 07.08.2012, the dossier of both the accused persons was got prepared at PP Madipur and they were produced before the Court in muffled face. IO/PW-20 moved an application for conducting their TIP but both the accused persons refused to join the TIP proceedings. With the permission of the court, IO obtained the specimen handwriting and signatures of Accused Karta Ram and thereafter, he was sent to JC.
42. PW-9 also identified the money recovered from the accused persons pertaining to other cases of robbery and fake driving license recovered from accused Karta Ram which is Ex. P-4.
43. Both these witnesses identified accused Karta Ram and Pawan and were duly cross-examined on their behalf.
44. PW-11 HC Hawa Singh had joined the investigation with the IO/PW-20 on 07.08.2012 when accused Karta Ram and Pawan were produced before the Court. His deposition on this aspect is in consonance with PW-9.
45. He further deposed that on 18.09.2012, IO handed over two notices u/s 91 CrPC to him to be served upon Incharge, Ghaziabad Licensing Transport Authority and Nodal Officer, Vodafone, Delhi. He got both the notices served. In response to the notice, Nodal Officer, Vodafone gave him the certified copy of CAF in the name of customer Vinod Singh and CDR pertaining to mobile no.
SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 11/338377019531 and certificate u/s 65B Indian Evidence Act. Incharge, Ghaziabad Licensing Transport Authority endorsed the notice u/s 91 CrPC. He returned back to the PS and handed over the documents to the IO.
46. He was not subjected to cross-examination on behalf of accused persons.
47. PW-12 Sachin Sharma is the witness from Regional Transport Office, Ghaziabad. He produced the original license record register and deposed that as per their record, no driving license no. NT 97640 was ever issued on 10.05.2007. As per record, no driving license was issued by the authority on 10.05.2007. As per entry at Page no. 284 dated 09.05.2007, the driving license no. 31897 was issued to one Asim Kumar Sarkar and as per entry at page no. 285 dated 11.05.2017, driving license no. 31898 was issued to Smt. Rajni Malhotra. The relevant entries are Ex. PW-12/A and Ex. PW-12/B.
48. He was shown the driving license no. NT 97640 and on seeing the same, he stated that it does not bear the seal impression of concerned licensing authority and the signatures which are reflected on the license were also not of the then MLO.
49. He was duly cross-examined on behalf of the accused persons.
50. PW-13 Israr Babu is the Alternate Nodal Officer from Vodafone Mobile Services. He produced the original application form of mobile no. 8377019531 alotted in the name of Vinod Singh. Copy of customer application form SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 12/33 along with voter ID of Vinod Singh is Ex. PW-13/A.
51. He also produced CDR of the said mobile for the period from 01.06.2012 to 30.07.2012 which is Ex. PW-13/B and certificate u/s 65B Indian Evidence Act in respect of the same which is Ex. PW-13/C. He also proved the documents handed over to the IO during investigation by the then Nodal Officer vide letter dated 18.09.2012 by identifying the signatures of the then Nodal Officer Sh. Deepak Tomar. Ex. PW-13/D is the covering letter. Ex. PW-13/E is the certified copy of CAF along with copy of voter ID card of customer. Ex. PW-13/F is the certified copy of CDR and Ex. PW-13/G is the certificate u/s 65B Indian Evidence Act issued by the then Nodal Officer.
52. He was duly cross-examined on behalf of the accused persons.
53. PW-14 HC Sher Singh is a formal witness being the MHC(M) who proved the deposit of the case property pertaining to the present case with malkhana vide various entries in register no. 19 which are Ex. PW-14/A to Ex. PW-14/C and movement of the case property vide RCs no. Ex. PW-14/D and Ex. PW-14/E.
54. He was duly cross-examined on behalf of accused persons.
55. PW-15 ASI Ashok Kumar is a witness to the arrest of accused Rajender by IO/SI Sandeep Dabas/PW-20 on 05.09.2012. He deposed that on 05.09.2012, accused Rajender was arrested in the court by IO/PW-20 with the permission of the court vide arrest memo Ex. PW-15/A. SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 13/33 IO recorded his disclosure statement Ex. PW-15/B and took his two days PC Remand. During PC Remand, accused Rajender led them to Gali no. 10, Anand Parbat near Vishwakarma Temple. There, he took them to factory no. 702, from where he got recovered a mobile phone make Nokia color Black from the drawer of the wooden table. There was a sim card of Vodafone cellular company in the said mobile phone. Something was found written on the backside of the mobile phone. The mobile phone was sealed with the seal of SK and seized. Accused disclosed that the said mobile phone was used about 2 months ago in commission of offence within the jurisdiction of PS Punjabi Bagh.
56. He identified accused Rajender as well as recovered mobile phone which is Ex. PX.
57. He was duly cross-examined on behalf of the accused persons.
58. PW-16 Ms. Chetna Singh is the then Ld. MM who had recorded the TIP proceedings of accused Karta Ram @ Om Prakash and Pawan Kumar Yadav wherein, their refusal to participate in TIP proceedings was recorded. The relevant proceedings are Ex. PW-16/B and her certificate is Ex. PW-16/C.
59. She was not subjected to cross-examination.
60. PW-17 Ms. Poonam Sharma is a witness from Record Room Criminal, Tis Hazari, who produced the original record of Case FIR no. 233/2012 PS Vikaspuri. After comparing the photocopy of disclosure statement of SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 14/33 accused Rajender available on the court record from the original case file produced, the same was proved as Ex. PW-17/A.
61. He was duly cross-examined on behalf of accused persons.
62. PW-18 SI Pawan Kumar is the IO of case FIR no.
233/12 u/s 25 Arms Act PS Vikaspuri. He stated that accused Rajender Kumar was arrested in the said case and confessed about his involvement in the present case vide disclosure statement Ex. PW-17/A. On 31.08.2012, he gave the information in this regard to PS Punjabi Bagh and handed over the relevant documents to the IO/SI Sandeep/PW-20.
63. He was duly cross-examined on behalf of the accused persons.
64. PW-19 Retired SI Sanwarmal is also a witness to the arrest of accused Rajender on 07.09.2012 and proceedings in respect to him as deposed by PW-15 SI Ashok Kumar. His deposition is in consonance with that of PW-15 except for the date of arrest which is stated by PW-15 as 05.09.2012.
65. He was duly cross-examined on behalf of the accused persons.
66. PW-20 SI Sandeep Dabas is the IO of the present case to whom the investigation was marked on 25.07.2012. After receiving the case file and perusing the same, he found that one Karta Ram had revealed his involvement in the present case. Upon surveillance of mobile number mentioned in SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 15/33 the delivery receipt of the motorcycle used by the accused persons, he found the location of the said mobile phone at Rajeev Vihar, Koda Colony Area, UP. Earlier IO had already obtained the dossier of Karta Ram having his photograph. He went to Khoda Colony with staff and made enquiries about accused Karta Ram but in vain.
67. Thereafter, he deposed about the secret information on the basis of which accused Karta Ram was apprehended on 06.08.2012, the recoveries effected from him as well as apprehension of accused Pawan Yadav at the instance of accused Karta Ram and the recoveries effected from him. His entire testimony on these aspects is in consonance with that of PW-9 and PW-10 and is thus not repeated therein for the sake of brevity.
68. He further deposed about information received on 31.08.2012 regarding arrest of accused Rajender Prasad in FIR No. 233/2012 PS Vikaspuri and his disclosure regarding involvement in the present case. He also deposed about arrest of accused Rajender Prasad on 05.09.2012 and recoveries effected from him in consonance with testimonies of PW-15 and PW-19 and the same is not repeated herein for the sake of brevity.
69. During investigation, he obtained CDR and CAF of mobile number 8377019531 recovered from accused Rajender. He sent the exhibits to FSL. He also sent the delivery receipt along with specimen handwriting of accused Karta Ram for handwriting comparison.
70. He identified all the accused persons and was duly cross-
SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 16/33examined on their behalf.
71. PW-21 Sh. Avdesh Kumar is the Senior Scientific Officer(Documents) from FSL Rohini. He deposed that on 18.09.2012, he received questioned documents i.e. delivery receipt dated 20.05.2012 having markings Q1 and Q2 (Ex. PW-21/A) and the standard documents i.e. specimen signatures and handwriting of Karta Ram @ Om Prakash marked as S1 to S4 (Ex. PW-21/B) running into 4 pages.
72. He examined the documents with the help of scientific instruments under different lighting conditions and found that the person who wrote the red enclosed writing and signature Mark S1 to S4 also wrote the red enclosed writing and signatures Mark Q1 and Q2. He proved his report in this regard as Ex. PW-21/C.
73. He was not subjected to cross-examination.
74. PW-22 Dr. BR Anand is the Assistant Director, Ballistics from FSL Rohini who deposed that on 18.09.2012, he received one sealed parcel with the seal of JP along with sample seal. The seal was intact. Upon opening the parcel, it was found containing one improvised pistol 7.65mm caliber which was marked by him as Ex. F1 and six 7.65 mm cartridges which were marked by him as Ex. A1 to Ex. A6. He examined the weapons and found Ex. F1 to be an improvised pistol in working condition that is a firearm and Ex. A1 to A6 to be ammunition as defined under Arms Act. He proved his report as Ex. PW-22/A.
75. He was duly cross-examined on behalf of accused persons.
SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 17/3376. PW-23 Sh. Ved Prakash Surya is the then Additional DCP West who had accorded sanction dated 06.09.2013 u/s 39 Arms Act for prosecution of accused Pawan Kumar Yadav. He proved the sanction accorded by him as Ex. PW-23/A.
77. He was duly cross-examined on behalf of accused persons.
STATEMENT OF ACCUSED:
78. All the incriminating evidence that came on record in the deposition of prosecution witnesses was put in detail to accused persons namely Karta Ram @ Om Prakash, Rajender Prasad Vishwakarma @ Dube and Pawan Kumar Yadav and their statements were recorded U/s. 313 CrPC on 02.05.2023. They denied all the incriminating evidence and asserted that they were innocent and falsely implicated in the present case. Accused Karta Ram and Pawan Kumar Yadav stated that they had refused to join the TIP proceedings as they were already shown to the witness in the PS. The witnesses were interested witnesses and have deposed falsely against them at the behest of the IO. DEFENCE EVIDENCE:
79. Accused persons did not examine any witness in support of their defence despite opportunity.
80. Final arguments have been heard and record carefully perused.
JUDICIAL RESOLUTIONS:
81. It is a settled proposition of criminal law that prosecution is supposed to prove its case on the judicial file by leading SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 18/33 cogent, convincing, reliable and trustworthy evidence beyond reasonable doubts. The case of prosecution has to fall or stand on its own legs and it cannot derive the benefit from the weaknesses, if any, in the defence of the accused. It is not for the accused to disprove the case of the prosecution and the onus to prove the case against the accused beyond reasonable doubts never shifts and always remains on the prosecution. Further, benefit of doubt in the prosecution story always goes to the accused and it entitles the accused to acquittal.
82. In the present case, accused persons are charged with the offences u/s 393/398/120B/34/468/471 IPC and Section 25/27 Arms Act.
83. Section 393 IPC provides punishment for an attempt to commit robbery.
84.The offence of robbery is defined u/s 390 IPC as per which any kind of theft is robbery if in order to committing of the said theft, or in committing the theft, or in carrying away or attempting to carrying away property obtained by theft, the offender for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt or of instant wrongful restraint.
85. The offence of theft is defined u/s 378 IPC as per which whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 19/3386. Thus, theft is the dishonest removal of movable property out of the possession of any person without the consent of that person. To bring home an offence u/s 378 IPC, the prosecution has to prove A) That there was a movable property.
B) That the said movable property was in possession of a person other than the accused.
C) that the accused took it out or moved it out of the possession of the said person.
D) That the accused did it dishonestly i.e. with intention to cause wrongful gain to himself or wrongful loss to another. E) That the accused took the movable property or moved it without the consent of the possessor of the same.
87. An analysis of Section 390 IPC would show that in order that theft may constitute robbery, prosecution has to establish A) in order to committing of theft; or B) in committing the theft; or C) in carrying away or attempting to carry away property obtained by theft D) The offender for that end i.e. any of the ends contemplated by A to C. E) Voluntarily causes or attempt to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint.
88. In other words, theft would be robbery, if for any of the ends mentioned in A to C above, the offender voluntarily causes or attempts to cause to any person death or hurt or SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 20/33 wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint.
89. Section 398 IPC provides that if, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than 7 years.
90. Section 398 IPC does not make any act an offence. It only provides minimum punishment for some offences under certain circumstances i.e. when person attempting to commit robbery or dacoity is armed with deadly weapon. Section 34 or 149 IPC have no application to a case covered by Section 398 IPC. Section 398 IPC cannot be applied constructively and relates only to the offender who is actually armed with deadly weapon. Guilt of the offence u/s 398 IPC can be attributed only to that offender who is armed with deadly weapon in an attempt to commit robbery or dacoity as Section 398 IPC negates the use of principle of vicarious liability u/s 34 IPC.
91. Section 120B IPC provides punishment for hatching the criminal conspiracy. Section 120A IPC defines the offence of criminal conspiracy as an agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means.
92. The essential ingredient of the offence of criminal conspiracy is the agreement to commit criminal offence and mere proof of such an agreement is sufficient to establish criminal conspiracy. Such an agreement can be proved either by direct evidence or by circumstantial SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 21/33 evidence or by both. However, direct evidence to prove conspiracy is rarely available and therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused persons.
93. Section 25 Arms Act provides punishment for possession of any prohibited arms and ammunition.
94. Section 27 Arms Act provides punishment for using arms and ammunition without license or prohibited arms and ammunitions.
95. Section 34 IPC provides exception to the general rule that no man can be held responsible for an independent act and wrong committed by another. It lays down the principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention, emanating from the accused leading to the doing of a criminal act in furtherance of such intention. It deals with doing of separate acts, similar or adverse by several persons, if all are done in furtherance of common intention, each person is liable for the result thereof as if he had done the act himself. The soul of Section 34 IPC is the joint liability of doing a criminal act. This section only provides a rule of evidence and does not create a substantive offence. Two elements are necessary to fulfill the requirement of Section 34 IPC. One is that the person must be present on the scene of occurrence and the second is that there must be a prior concert or a pre- arranged plan. Unless these two conditions are fulfilled, a SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 22/33 person cannot be held guilty of an offence by operation of Section 34 IPC.
96. Common intention implies a pre-arranged plan and acting in concert pursuance to that plan. Common intention comes into being prior to the commission of act in point of time which need not be a long gap. The common intention to give effect to a particular act may even develop at the spur of the moment between a number of persons with reference to the facts of a given case. Where there is no direct evidence of common intention, it has to be inferred from circumstantial evidence.
97. Section 468 IPC provides punishment for forgery done for the purpose of cheating and Section 471 IPC provides punishment for using as genuine a forged document or an electronic record.
98. The offence of forgery is defined in Section 463 IPC which provides that whoever makes any false documents or false electronic record or part of a document or electronic record with intent to cause damage or injury, to the public or to any person or to support any claim or title or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
99. Section 464 IPC talks about making of false documents.
100. Now, let us apply the above discussed definitions of the offences with which accused persons have been charged to the facts of the present case and evidence SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 23/33 brought on record.
FINDINGS:
101. I have heard the arguments at length and have carefully perused the record. I shall be dealing with arguments of both sides and evidence produced on record with reference to each of the charged offence separately.
EVIDENCE FOR OFFENCE OF CRIMINAL CONSPIRACY U/S 120B IPC AS CHARGED AGAINST ALL THE ACCUSED PERSONS:
102. In the present case, there is neither any direct nor any indirect evidence of conspiracy between the three accused persons brought on record by the prosecution. As per the case of the prosecution, accused Karta Ram and Pawan Yadav had executed the attempt to commit robbery in respect of which a conspiracy was hatched by them with co-accused Rajender Prasad Vishwakarma. Other than the disclosure statement (Ex. PW-17/A) of the accused Rajender Prasad Vishwakarma recorded in case FIR no. 233/2012 u/s 25 Arms Act PS Vikas Puri regarding his involvement in the present case, there is no other evidence on record to establish the connection of accused Rajender with the present case. In addition, the disclosure statement of accused Karta Ram Ex. PW-9/B and that of Accused Pawan Ex. PW-9/C record that one Dube used to give them information for committing offence. However, no evidence has been produced on record to show that this Dube was accused Rajender Prasad Vishwakarma. It is a settled law that disclosure of accused persons cannot be read in SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 24/33 evidence against them. Accordingly, this disclosure statement of accused Rajender (Ex. PW-17/A) cannot be made a basis for convicting the accused persons for offence of criminal conspiracy.
103. Moreover, one mobile phone has been shown as recovered from accused Rajender. The CDRs and CAF of the said mobile number have been collected by the IO and proved on record. However, IO has miserably failed to establish even telephonic communication between all the three accused persons at the time of or prior to the reported offence. There is no evidence on this aspect produced on record. Neither the CDRs or CAF of mobile numbers of other two accused persons have been proved on record nor it is shown that the mobile recovered from possession of Rajender was used for telephonic communication between the accused persons. As per the testimony of PW-13 Israr Babu, the CAF of recovered mobile number was in the name of one Vinod Singh. IO has even failed to investigate the link between said Vinod Singh and Accused Rajender.
104. Accordingly, the evidence on record is highly insufficient for convicting the accused persons for offence u/s 120B IPC r/w Section 393/398 IPC as charged against them. All the accused persons are accordingly, acquitted for offence u/s 120B IPC r/w Section 393/398 IPC as charged against them.
EVIDENCE FOR OFFENCE OF ATTEMPT TO COMMIT ROBBERY ARMED WITH DEADLY WEAPON U/S 393/398/34 IPC AS CHARGED AGAINST ACCUSED SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 25/33 KARTA RAM @ OM PRAKASH AND PAWAN KUMAR YADAV:
105. As per the case of prosecution, the primary witness to prove the commission of offences u/s 393/398/34 IPC are the complainant/victim Rajender Goyal and his brother/victim Madan Lal Goyal who have been examined as PW-1 and PW-5 respectively. There is no other eye witness to the alleged incident as per the case of the prosecution.
106. Both these witnesses that are PW-1 and PW-5 have duly supported the case of prosecution regarding the commission of offences at the alleged date, time and place. However, they have failed to identify either of the accused persons as the offender who had tried to commit robbery while armed with deadly weapon i.e. automatic pistol. Despite cross-examination by Ld. Additional PP for the State, they failed to identify the accused persons and stated that since the offenders were wearing helmets at the time of commission of offence, they were not in a position to see their faces or identify them. None of the accused person has been apprehended at the spot. Thus, there is no direct evidence on record to connect either of the accused persons to the reported offence.
107. It is submitted by Ld. Additional PP for the State that the bike used by the accused persons at the time of commission of offence bearing Registration no. DL 8S AU 3031 was left at the spot when the accused persons absconded from there. The said pulsar motorcycle was SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 26/33 seized from the spot and has been identified by PW-1 as well as PW-5 as motorcycle used by offenders at the time of commission of offence. During investigation, it has also come on record that the said motorcycle was purchased by accused Karta Ram @ Om Prakash. The said fact has been duly proved by the deposition of PW-6 i.e. person from whom the motorcycle was purchased by the accused as well as the delivery receipt Mark PW-6/A4 pertaining to the said motorcycle. It is also duly proved on record from the testimony of the Handwriting Expert/PW-21 that the delivery receipt dated 20.05.2012 is bearing signatures and handwriting of accused Karta Ram @ Om Prakash. Accordingly, it is duly proved on record that the motorcycle used by the accused persons at the time of commission of offence was owned by accused Karta Ram @ Om Prakash. Accused Karta Ram @ Om Prakash has miserably failed to explain the presence of his motorcycle at the spot and thus, it can be concluded that it was he along with accused Pawan who had committed the offence of attempt to commit robbery at the date, time and place of incident. Moreover, both the accused persons namely Karta Ram @ Om Prakash and Pawan had refused to join the TIP proceedings and thus, adverse inference can be drawn against them in this regard.
108. I have given my thoughtful considerations to the submissions of Ld. Additional PP for the State in this regard.
109. In my opinion, a single circumstance of the SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 27/33 motorcycle allegedly used by the offenders at the time of commission of offence, being owned by accused Karta Ram @ Om Prakash is not sufficient to give a conclusive finding that it was accused Karta Ram @ Om Prakash only who was riding the said motorcycle at the time of reported offence and had thus, committed the offence along with his associate. This circumstance of presence of motorcycle belonging to accused Karta Ram @ Om Prakash left by the offender at the spot of incident after the incident can be explained by various other situations which are other than the guilt of or involvement of accused Karta Ram @ Om Prakash in the reported incident and it does not lead to the only conclusion that it was accused Karta Ram @ Om Prakash who had committed the reported offence. This mere circumstance when read in the light of testimony of PW-1 and PW-5 regarding non-identification of the accused persons as the perpetrator of crime is sufficient to hold that the prosecution has been unable to prove the offence u/s 393/398/34 IPC as charged against accused Karta Ram @ Om Prakash and Pawan Kumar Yadav.
110. Moreover, in the present case, the evidence on record is not even sufficient to hold that motorcycle recovered from the spot was actually belonging to the accused Karta Ram @ Om Prakash. The said fact is not proved on record beyond any reasonable doubt because of multiple reasons. PW-6 deposed that he had sold the motorcycle no. DL 8S AU 3031 to Om Prakash and Pawan Yadav for a sum of Rs. 40,000/-. However, Delivery SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 28/33 Receipt Mark PW-10/A-4 is only in the name of accused Om Prakash. The earlier delivery receipt of the vehicle Mark B from previous owner Mohd. Shakeel Shah notes the registration no. of the motorcycle as DL 8S AL 3031 and colour silver whereas, delivery receipt Mark PW- 10/A-4 records no. of the vehicle as DL 8S AU 3031 and colour grey. These contradictions in documents of purchase of the motorcycle by accused Karta Ram @ Om Prakash are sufficient to cloud the entire case of the prosecution in this regard with doubt.
111. In addition to this, the accused persons have explained their refusal to participate in the TIP proceedings on the ground that they were shown to the witnesses. Their explanation is fortified by the testimony of complainant/PW-1 who specifically deposed that he was shown two persons at the PS and he had told the police officials that he cannot identify them as the offenders were wearing helmets. Thus, no adverse inference in this regard can be drawn against the accused persons.
112. In view of the reasons given above and considering the overall evidence on record, I have no hesitation in holding that the prosecution has miserably failed to prove on record the offences u/s 393/398/34 as charged against accused Karta Ram @ Om Prakash and Pawan Kumar Yadav. Accordingly, they are entitled to acquittal for the said offences.
EVIDENCE FOR OFFENCES U/S 25/27 ARMS ACT AS CHARGED AGAINST THE ACCUSED PAWAN KUMAR SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 29/33 YADAV AND KARTA RAM @ OM PRAKASH RESPECTIVELY :
113. As per the case of prosecution and testimonies of victims PW-1 and PW-5, the offenders who had attempted to rob PW-1 at the time of the reported incident were carrying one automatic pistol with 6 live cartridges which was pointed out towards the victims at the time of the incident and which was snatched by PW-1 from the offender. It is duly proved on record that the snatched pistol and cartridges were arms and ammunitions as per FSL report Ex. PW-22/A. However, the evidence on record is highly insufficient to record that the offenders were accused Karta Ram @ Om Prakash or Pawan Kumar Yadav for the reasons as discussed above. Moreover, no effort has been made by the IO to take finger prints from the recovered pistol to connect it with either of the accused.
114. In view of the failure of PW-1 and PW-5 to identify the accused persons as the offenders and absence of technical evidence, none of the accused persons can be convicted for offences u/s 25 and 27 Arms Act as charged against them.
115. In view of the reasons given above and considering the overall evidence on record, I have no hesitation in holding that prosecution has miserably failed to prove on record the offence u/s 27/25 Arms Act as charged against accused Karta Ram @ Om Prakash and Pawan Kumar Yadav respectively. Accordingly, they are SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 30/33 entitled to acquittal for the said offences. EVIDENCE FOR OFFENCES U/S 468/471 IPC AS CHARGED AGAINST ACCUSED KARTA RAM @ OM PRAKASH :
116. As per the case of the prosecution, one driving license bearing no. NT 97460/GZB/07 dated 10.05.2007 in the name of Om Prakash Chaudhary S/o Chopaji Chaudhary (Ex. P-4) was recovered from personal search of accused Karta Ram @ Om Prakash after his arrest. On verification, the said driving license was found to be a forged document which was not issued by the Ghaziabad Licensing and Transport Authority. The fact that the license was a false document not having been issued by Ghaziabad Licensing and Transport Authority is proved by PW-12 by producing the original license record register.
117. It is submitted by Ld. Additional PP for the State that since a forged and fabricated driving license has been recovered from the possession of accused Karta Ram @ Om Prakash, he is liable for conviction u/s 468/471 IPC.
118. Perusal of Section 468 and Section 471 clearly shows that mere possession of a forged document is not punishable under those Sections. Section 471 IPC provides punishment for use of a forged document, however, in the present case, the forged driving license Ex. P-4 has not been used by accused in any manner. Neither it was shown by the accused to the police officials as an identity proof nor it was used for any other purpose. It was merely found on his cursory search by the police officials. There was no SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 31/33 use of forged driving license by accused Karta Ram as a genuine document and accordingly, he cannot be convicted for offence u/s 471 IPC.
119. As regards offence u/s 468 IPC, it provides punishment for committing forgery for the purposes of cheating. Forgery includes preparation of a false document as defined in Section 463 IPC. Making of false document is explained in Section 464 IPC.
120. It is a settled law that in order to make a false document, a person must have dishonestly or fraudulently made a document, with the intention of causing it to be believed that such document had been made by or authority of a person by whom or by whose authority he knows that it was not made. For constituting an offence u/s 464 IPC (Making of a false document), it is imperative that the false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery. In the present case, though it has been proved on record that a false document i.e. driving license (Ex. P-4) has been made but there is no evidence to hold that accused Om Prakash @ Karta Ram is the maker of the false document. Merely because the false/fake driving license (Ex. P-4) is in the name of the accused, it cannot be conclusively held beyond any reasonable doubt that he is the one who made the false/fake driving license (Ex. P-4). Accordingly, the evidence on record is highly insufficient for convicting accused Karta Ram @ Om Prakash for offence u/s 468 SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 32/33 IPC.
121. In view of the reasons given above, accused Karta Ram @ Om Prakash is acquitted for the offences u/s 468/471 IPC as charged against him due to insufficiency of evidence.
CONCLUSION:
122. Considering the overall evidence on record and reasons given above, accused Karta Ram @ Om Prakash, Pawan Kumar Yadav and Rajender are acquitted for the offences charged against them.
123. Copy of the judgment be given free of cost to the accused persons.
124. File be consigned to record room.
Digitally signed by SHIVALI SHIVALI SHARMA
Announced in the open court SHARMA Date:
2023.09.21
Dated 21.09.2023 15:30:09 +0530
(SHIVALI SHARMA)
ASJ-03/WEST/THC/DELHI
21.09.2023
SC No. 57574-2016 State Vs. Karta Ram Etc. FIR No. 221-2012 Page No. 33/33