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BRIEF FACTS AND REASONS FOR DECISION:-

1. The present case was registered on the complaint of Sh.

Amresh Kumar Mishra vide complaint Ex. PW12/A that complainant is working at MKS Company, Sector 3, Rohini. On 25.05.2016 he went to Dabwali, Haryana and he was returning at Delhi around 02:30 AM in the night. When he came out of ISBT, Kashmere Gate, Bus Terminal, then a TSR suddenly came there and stopped near him. The driver had asked that where the complainant has to go. On which, he had replied that the complainant has to go at Nihal Vihar. In the said TSR behind the driver, one person was sitting and another person was sitting with the TSR driver. The TSR driver told the complainant that these persons are going towards Nihal Vihar U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi only. The complainant sat on left side of the passenger seat of the person already sitting in the TSR. After some time, the person sitting on front seat came on the back seat and sat on left side of the complainant. When the TSR reached under the flyover, then the TSR driver has stopped the vehicle. The person sitting in the auto had pulled out the complainant out of the TSR. They threatened the complainant that, "give everything whatever you have and not to make noise". When complainant opposed, then the person sitting in the TSR on back seat had come out and strangulated the neck of the complainant while shouting that if the complainant does not give his valuables then they will kill him. In the meanwhile, the TSR driver had hit the stone many times on the head of the complainant. The third person had pulled the purse out of the pocket from the complainant. The purse was containing Rs. 2,500/-, one PAN card, one ATM card of Bank of Baroda, one driving licence, one mobile phone of make Micromax having two sim bearing mobile number 9953125261 and another mobile number is 9650894812. When the complainant was shouting then the passers-by started coming. On which the said three accused started running. One of the accused was caught by the public person and in the meanwhile, police had reached at the spot. The person who was caught at the spot was Naresh. He had caught the complainant from behind. The police had U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi registered the FIR Ex. PW2/A on 25.05.2016. The information was received at PS around 05:15 AM on 25.05.2016. The accused Naresh had disclosed name of co-accused Raj Kumar and Manish. At the instance of accused Naresh, the co-accused Manish was arrested from Mori Gate. The co-accused Manish had taken out mobile phone and purse of the complainant. Accused Manish had disclosed that mobile phone was hidden by him at a roundabout in bushes which was recovered at the instance of accused Manish. A five rupee note was also recovered from pocket of accused Manish which was balance out of his share of Rs.1,000/-, the amount looted from the complainant. The accused Manish in PC remand has pointed out at accused Raj Kumar who had hit the complainant with a stone and he is the TSR driver. Accused Raj Kumar, the TSR driver, was arrested from Mori Gate who is a vagabond. Accused Raj Kumar got recovered TSR bearing registration no. DL1RK6992. Under the back seat of TSR, one purse was recovered which found containing driving licence, PAN card. The robbed money was already spent by accused Raj Kumar. Accused Manish and accused Raj Kumar had refused to participate in the TIP. All the accused were charged under Section 307/34 IPC and they were also charged under Section 392/394/397/34 IPC. The charge was given on 06.09.2016. Accused Manish was further charged under Section 411 IPC on U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi recovery of mobile phone of make Micromax from his possession with cash of Rs. 500/-, the robbed money. Accused Raj Kumar was further charged under Section 411 IPC as purse, driving license and PAN card of the complainant was recovered from him.

7. All the three accused are charged under Section 307 IPC read with Section 394/34 IPC in that all the accused person in furtherance of their common intention had caused injury on the complainant while committing robbery. The accused Naresh @ Nauni had held the neck of PW-12 the complainant from behind and pressed it to suffocate the PW-12 for such purpose of commission of robbery. Further it is deposed by PW-12 that accused Raj Kumar was driving the said TSR and accused Manish had forcibly taken out his wallet and mobile phone. When the complainant objected to the said robbery then all the three accused started beating PW-12 with stone and PW-12 had sustained serious injury on his head and face. Blood had started U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi coming out from his injuries. PW-12 was shifted to Aruna Asaf Ali Hospital. Hence such injuries were claimed to be caused for the purpose of incurring death on PW-12.

11. Now it has to be seen whether the prosecution has successfully proved the ingredients of Section 392/394/397/34 IPC.

12. To prove ingredients of Section 392/397/34 IPC, the prosecution has to prove necessary ingredients. Section 395 IPC provides punishment for dacoity. It was held in case titled State of Maharashtra v. Joseph Mingel Koli (1997) 2 Crimes 228 (Bom) that when robbery is either committed or an attempt to commit it is made by five or more person than all such persons, who are present or aiding in its commission or in an attempt to commit it, would commit the offence of dacoity. The said definition is laid down u/Sec. 391 IPC. It is laid down in case U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi titled Ganesan v. State represented by Station House Officer in Crl. Appeal no. 903/2021 from Hon'ble Supreme Court of India dated 29.10.2021 at para no. 12.3 that as per Section 397 IPC if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. It was further held at para no. 12.4 that the only difference between robbery and dacoity would be number of persons involved in co-jointly committing or attempt to commit a robbery. It was further held that the word used u/Sec. 390, 392 to 395, 397 and 398 of IPC is 'offender'. It was further held that for the aforesaid act the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon......' can be punished. However u/Sec. 391 IPC 'dacoity' and Section 396 IPC which is dacoity and murder then the accused can be convicted on the basis of constructive liability. The necessary ingredients of dacoity u/Sec. 397 IPC were laid down at para no. 12.6 of the above judgment titled Ganesan v. State (supra) and the relevant para is reproduced hereasunder:

13. It is settled law that under Section 392, Section 394 and Section 397 IPC only the offender/ accused who has committed robbery and / or has voluntarily caused hurt or attempt to commit such robbery and who uses any deadly weapon to cause grievous hurt on any person at the time of committing such robbery or dacoity can only be punished. For the aforesaid purpose the accused cannot be convicted on the basis of constructive liability. Only the offender who uses deadly weapon can be punished. Hence the prosecution has to prove the individual acts of each of the accused on record to bring home the offence. In the present case the prosecution has failed to prove on record that which of the injury are caused by any of the accused and what weapon of offence is used by each of the accused. It is not the case of the prosecution that the accused had ran away with the weapon of offence. If the weapon of offence was lying at the spot or available at the spot then they must have been produced on record in evidence of PW-12 which is not done by the prosecution. In fact the police person had reached at the spot during the commission of offence and they reached there after hearing the sound "Pakro-Pakro". Hence the police person had reached just at the time when the offence was committed. The weapon of offence was available at the spot. However it was not produced in the evidence of injured/PW-12 without any reason. The injuries has to be U/s 392/394/397/307/411/34 IPC P. S. Subzi Mandi proved in reference to the weapon of offence. Hence there is no constructive liability between the accused in reference to Section 392/394/397 IPC and therefore each of the accused has to be liable separately for their respective acts. Separate act of each of the accused while committing injury on the victim has to be proved. Such separate acts are totally absent in the evidence of the prosecution and even in the deposition of the complainant/PW-12. Hence it cannot be said that which of the accused has voluntarily caused hurt on the victim/ complainant in the process of such robbery and hence it is held that doubt has arisen in the case of the prosecution. Benefit of such doubt is granted to the accused. The prosecution has failed to prove the necessary ingredients of Section 394/397/34 IPC against each of the accused. Hence all the accused are held acquitted of offence committed under Section 394/397/34 IPC.