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Cites 14 docs - [View All]
Section 397 in The Indian Penal Code
Section 354 in The Indian Penal Code
Section 452 in The Indian Penal Code
Section 392 in The Indian Penal Code
State Of Kerala And Etc. vs Monu D. Surendran And Anr. Etc. on 30 November, 1989

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Delhi District Court
State vs Unknown on 30 July, 2016
                                                           -:: 1 ::-



        IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
             SPECIAL JUDGE (NDPS) NORTH WEST,
     ADDITIONAL SESSIONS JUDGE, ROHINI COURTS, DELHI



New Sessions Case Number                                               : 52019/2016.
Old Sessions Case Number                                               : 69 of 2014.
Unique ID Number                                                       : 02404R0210032014


State
                                                      Versus
Mr.Rakesh @ Monu
Son of Mr. Naresh
Resident of Village and Post Office Jonti, Delhi.

First Information Report Number : 282/2014
Police Station : Kanjhawala
Under sections 392/397/452/354 of the Indian Penal Code.


Date of filing of the charge sheet before                                       : 09.07.2014.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal                                         : 31.07.2014.
Arguments concluded on                                                          : 30.07.2016.
Date of judgment                                                                : 30.07.2016.


Appearances: Ms. Nimmi Sisodia, Additional Public Prosecutor for the
             State.
             Accused Mr. Rakesh @ Monu has been produced from
             judicial custody.
             Mr. Yashbir Singh, Amicus Curiae for accused.

**********************************************************



New Sessions Case Number : 52019/2016.
Old Sessions Case Number : 69 of 2014.
Unique ID Number : 02404R0210032014
FIR No.282/2014 , Police Station Kanjhawala,
Under sections 392/397/452/354 of the Indian Penal Code.
State v. Rakesh @ Monu.                                                            -:: Page 1 of 40 ::-
                                                            -:: 2 ::-



                                                JUDGMENT

1. Mr.Rakesh @ Monu, the accused, has been charge sheeted by Police Station Kanjhawala, Delhi for the offences under sections 392, 397, 452 and 354 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 09.04.0214 at about 07:00 pm at House No. 552, Village Jonti, Delhi within the jurisdiction of Police Station Kanjhawala, the accused armed with a knife which is a deadly weapon, committed robbery of one gold chain and one gold ear tops from the complainant Ms. Usha wife of Mr.Praveen and he used that deadly weapon while committing robbery. During the above said date, time and place, the accused voluntarily caused hurt, in the process of committing robbery, to Mr. Praveen husband of Ms.Usha causing simple injuries with the help of said knife upon him. During the above said date, time and place, the accused committed house trespass into the above mentioned house of the complainant having made preparation to cause hurt and commit robbery. On the above said date, time and place, the accused outraged the modesty of Ms. Usha wife of Mr. Praveen tearing her clothes.

CHARGE SHEET AND COMMITTAL

2. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 09.07.2014 and after its committal to the Sessions, the case was assigned to the learned predecessor of this Court for 31.07.2014. New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                                -:: Page 2 of 40 ::-
                                                            -:: 3 ::-




AMICUS CURIAE

3. As the accused was unable to engage a private counsel to defend himself, on his request, Mr.Yashvir Singh, Advocate, was appointed as Amicus Curiae for him vide order dated 12.08.2014.

CHARGE

4. After hearing arguments, the charge for offences under sections 397, 394, 452 and 354 of the IPC was framed against the accused Rakesh @ Monu vide order dated 10.12.2014 by the learned predecessor of this Court to which he pleaded not guilty and claimed trial.

PROSECUTION EVIDENCE

5. In order to prove its case, the prosecution has examined as many as 10 witnesses i.e. Ms. Usha, complainant of the case, as PW1; Mr. Praveen, husband of the complainant, as PW2; Ct. Rajesh Kumar, the witness of investigation of the case, as PW3; Ct. Sachin, witness of investigation of the case, as PW4; Ct. Ajay Kumar, witness of the investigation of the case, as PW5; Ms. Shefali Barnala Tondon, Metropolitan Magistrate, who had recorded the statement under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.), as PW6; HC Kailash Chand, the Duty Officer who had recorded the formal FIR of the case, as PW7; Mr. Sunil, brother in law of complainant, as PW8; Ex.SI Sandeep, the investigation officer of the case, as PW9; and Dr. New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                                -:: Page 3 of 40 ::-
                                                            -:: 4 ::-



M.Das, under whose supervision Dr.Prianka (not examined) had medically examined Mr. Praveen, as PW10.

6. The accused and the Amicus Curiae have preferred not to cross examine PWs 6 and 10 due to which their evidence remains uncontroverted and unrebutted and can be presumed to have been admitted as correct by the accused.

STATEMENT OF ACCUSED UNDER SECTION 313 OF THE CR.P.C. AND DEFENCE EVIDENCE

7. In his statement under section 313 of the Cr.P.C., the accused has controverted and rebutted the entire evidence against him and submitted that he is innocent and has been falsely implicated in this case. He has stated that on 08.04.2014 when he was beaten and he lodged a complaint, his uncle Praveen, his aunty Usha and other family members requested him not to pursue the complaint on the ground that his uncle Praveen who is employed in armed forces may lose his job. On their request, he did not pursue his complaint. They had promised him that they would not again beat me but he was implicated falsely in the present case. He tried to take out copy of his complaint/FIR but he was told by the concerned police official that since his complaint was not registered as FIR, therefore, its copy is not available. However, he has a copy of his medical document at his house.

8. In his defence, the accused as examined Dr.Sidharth as DW1 and New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                                -:: Page 4 of 40 ::-
                                                            -:: 5 ::-



          HC Ranbir Singh as DW2.


ARGUMENTS

9. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. I have also carefully perused the memorandum of arguments filed on behalf of the accused.

10.The Additional Public Prosecutor for the State has requested for convicting the accused persons for having committed the offences under sections 397, 394, 452 and 354 of the IPC, submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable.

11.The Amicus Curiae for the accused, on the other hand, has requested for his acquittal submitting that there is nothing incriminating against the accused on the record. The place of alleged occurrence is doubtful. The doctor who had examined Mr.Praveen in Shanti Nursing Home has not been examined. There is discrepancy in the name of the person who took Mr.Praveen to the hospital. There is an unexplained delay in the recording the statement under section 164 of the Cr.P.C. of the complainant. There is no medical or forensic evidence against the accused. The investigation is not proper as neither any photographs of the scene New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                                -:: Page 5 of 40 ::-
                                                            -:: 6 ::-



of crime were taken nor videography was done nor Crime Team called at the spot. The evidence of the prosecution witnesses is unreliable as it suffers from various contradictions, improvements and inconsistencies.

DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS

12.The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                                         -:: Page 6 of 40 ::-
                                                            -:: 7 ::-



witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concertized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.

13.Under this sphere, I now proceed to test the submissions of both the sides.

CASE OF THE PROSECUTION, ALLEGATIONS AND PROVED DOCUMENTS

14.The prosecution story unveils on 09.04.2014 when DD No.24A dated 09.04.2014 at 07:14 pm (Ex.PW7/A and Ex.PW7/A1) was registered informing the police about injury at H.No.551, Village Jonti. Ms.Usha (PW1) made the complaint (Ex.PW1/A) in Police Station Kanjhawala. SI Sandeep (PW9) wrote rukka (Ex.PW9/A) on the same. FIR (Ex.PW7/B) was registered by HC Kailash Chand, Duty Officer (PW7) and he made endorsement (Ex.PW7/C) on the rukka. The original rukka and the FIR were given to Ct.Sachin (PW4) to be delivered to SI Sandeep (PW9). SI Sandeep (PW9) and Ct. Sachin (PW4) reached the spot after New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                                           -:: Page 7 of 40 ::-
                                                            -:: 8 ::-



getting information about the incident and then went to SGM Hospital. Inspector Tarif Singh (not examined) with Ct.Rajesh Kumar (PW3) also reached the spot on the instructions of the Duty Officer. Mr.Praveen (PW2) had been medically examined by Dr.M.Das (PW10) vide MLC (Ex.PW10/A). The clothes of injured were taken into possession vide seizure memo (Ex.PW9/B) alongwith blood sample on gauze and the MLC. Site plan (Ex.PW2/A) was prepared at the instance of Mr.Praveen (PW2). SI Sandeep, Investigation Officer (PW9) collected broken pieces of bangles (Ex.P1) blood stains, and earth control (Ex.P-3 to P5) from the crime spot, by keeping it in three separate parcels which were sealed with the seal of SD, and were taken into possession vide seizure memos (Ex. PW2/B, C and D). Ms.Usha (PW1) handed over her torn salwar suit (Ex.P3) to SI Sandeep, Investigation Officer (PW9) who seized the same vide seizure memo (Ex.PW1/B). Accused was arrested from his house i.e. H.No.611, Village Jonti on 11.04.2014 vide arrest memo (Ex.PW2/E) and his personal search was taken vide personal search memo (Ex. PW2/F). His disclosure was recorded vide disclosure statement (Ex.PW5/A). Accused led SI Sandeep (PW9) and Ct.Ajay Kumar (PW5) to the fields for recovery of knife but the same could not be recovered and memo regarding non recovery of knife (Ex.PW5/B) was prepared. Pointing out memo (Ex.PW5/C) was prepared at the instance of the accused. The statement of Ms.Usha (PW1) under section 164 of the Cr.P.C. (Ex.PW1/C) was recorded by Ms.Shefali Barnala Tandon, learned New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                                -:: Page 8 of 40 ::-
                                                            -:: 9 ::-



Metropolitan Magistrate (PW6) and copy of the statement was supplied to the Investigation Officer (PW9) on his application (Ex.PW6/A).

15.As per the prosecution case, the accused is known to Ms.Usha (PW1) and Mr.Praveen (PW2) as he is grandson of Tauji (elder paternal Uncle) of Mr.Praveen, and Ms.Usha is wife of Mr.Praveen. On 09.04.2014 in the morning, Ms.Usha (PW1) went to her plot situated in another part of village Jonti at a distance from her house, where he met her at about 7-7.30 PM and threatened her that he would stab her husband Mr.Praveen (PW2). Ms. Usha (PW1) requested him not to do so. Thereafter, at about 06:30 to 07:00 pm on that very day, when Ms.Usha (PW1) again went to her plot and returned to her house, she saw the accused entering her house no. 512, Village Jonti, Delhi. Ms.Usha (PW1) also came inside the house and requested the accused to leave her house immediately. The accused immediately took out a knife, which he was carrying with him, and started grappling with Ms.Usha, during which the suit worn by her got torn. He also snatched gold chain and gold earrings of Ms.Usha, which she was wearing at that time. In the meantime, Mr.Praveen (PW2) arrived and at that time the accused was attempting to stab Ms.Usha with a knife. Mr.Praveen (PW2) came in between the accused and Ms.Usha (PW1) and resultantly got stabbed with the knife with which the accused attempted to stab Ms.Usha. Thereafter, the accused again inflicted another stab blow on Mr.Praveen (PW2) in his stomach and ran away from the spot. New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                                -:: Page 9 of 40 ::-
                                                        -:: 10 ::-



Mr. Praveen (PW2) was first taken to Shanti Nursing Home and then taken to Sanjay Gandhi Memorial Hospital by Mr.Sunil (PW8) and one more person.

16.The allegations against the accused are that he has committed offences of house trespass, robbery with use of a knife which is a deadly weapon and outraging modesty of a woman.

IMPORTANT ISSUES

17.The important issues and the points in dispute are being discussed hereinafter.

EVIDENCE OF MATERIAL WITNESSES

18.Ms.Usha (PW1) and Mr.Praveen (PW2) are the most material witnesses of the prosecution. However, their testimonies suffer from numerous contradictions and inconsistencies which have not been explained by the prosecution.

19.In her examination in chief, Ms.Usha (PW1), the complainant of the case, has ostensibly deposed on the lines of the prosecution version. She has deposed that she knows accused Rakesh and he is also known as Monu. He is grandson of tauji of her husband. On 09.02.2014, in the morning, she went to their plot which was situated in the another part of village and was at some distance from his house. There accused Rakesh met her and he threatened her that he would stab her husband. It was at about 07:00-07:30 New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                             -:: Page 10 of 40 ::-
                                                        -:: 11 ::-



am. She asked accused not to do it. On the same day, in the evening at about 06:30-07:00 am, she again went to their outer plot. When she returned at that time to their house, she saw that the accused was entering her house. She also entered her house and she requested the accused to leave her house. In the meanwhile, the accused took out a knife which he was carrying. The accused started grappling with her in which her suit, which she was wearing, was torn. The accused also snatched her gold chain and her gold ear rings which she was wearing at that time. In the meanwhile, her husband Mr.Parveen arrived. At that time, the accused was about to stab her with the knife, he was carrying. Her husband came in between and her husband got stabbed with the knife. Accused stabbed her husband once again i.e. the accused stabbed him twice. Accused stabbed her husband in his stomach and the second injury was on the hand of her husband. After stabbing, the accused ran away from the spot. Her husband was taken to the hospital. They lodged the complaint against the accused.

20.In her cross examination on behalf of the accused, she denied the suggestion that one day prior to the incident, the accused lodged a complaint against her and her husband in the police station qua some matter. She voluntarily stated that there is no such complaint. She denied the suggestion that because of that complaint, she and her husband have falsely implicated the accused. She has denied the suggestion that they wanted to put pressure on the accused to New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                             -:: Page 11 of 40 ::-
                                                        -:: 12 ::-



compromise the complaint given by the accused against them and therefore, they filed false compliant. She has admitted that she did not hand over any receipt of gold chain and gold ear rings to the police. She also did not tell any special mark of identification of those articles to the police. She also did not tell the police the weight of those gold articles. She also did not describe the knife in her complaint to the police. The gold articles or the knife were not recovered during investigation. She has denied the suggestion that since knife was not used in the offence and since no gold articles were robbed, therefore, those details were not given by her or that therefore, those articles could not be recovered. She has denied the suggestion that the police did not recover any exhibit from the spot of incident or that the exhibits are planted. She denied the suggestion that the suit was not torn and that the suit was deliberately torn and then given to the police to create false evidence. She has denied the suggestion that the accused did not commit any such kind of crime. She has denied the suggestion that he was not even present at the time of incident at the place of incident. She has denied the suggestion that no such incident took place in her presence. She did not sustain any injury. Her medical was not got conducted by the police. She has denied the suggestion that her medical was not conducted deliberately, else, it would have revealed no injury mark of snatching of gold chain or snatching of ear rings or any other injury. She has denied the suggestion that her statement under section 164 of the Cr.P.C. was given by her upon being tutored by her husband. She has denied the suggestion that New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                             -:: Page 12 of 40 ::-
                                                        -:: 13 ::-



          she has deposed falsely.


21.Mr. Parveen (PW2) has deposed that he knows accused Rakesh @ Monu as he is grandson of her tauji. His father's name is Mr. Naresh. He had come to Delhi on vacation in April, 2014 as he is employed in Army. On 09.04.2014 in the morning, the accused threatened her wife stating that he would stab him with a knife. He had also shown one knife to his wife Ms. Usha in the morning. He is not take it seriously, since, the accused is a smack addict. On 09.04.2014 in the evening at about 06:00 pm when he was present on another plot in the same village, with his wife, the accused came and quarreled with him and then left the plot. Thereafter, his wife and his mother left that plot of their house. Thereafter, he also left the plot for his house at about 06:30 or 06:45 pm. When he reached his house, he saw that the accused was present in his house and he was carrying a knife. He was also holding his mother and his wife. He had also consumed smack at that time. As soon as he entered the house, the accused stabbed him twice with the knife he was carrying. One stab blow was received by him on his chest and another stab blow was received on his left hand. Thereafter, the accused fled from the spot with the knife. Thereafter, he was taken to hospital by his brother Mr.Sunil and one more person. He was first taken to Shanti Nursing Home and then he was taken to Sanjay Gandhi Memorial Hospital. Later on, he was told by his wife that the accused has also taken away her gold chain and gold ear rings. Police came at SGMH. Police took him to the spot from the New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                             -:: Page 13 of 40 ::-
                                                        -:: 14 ::-



hospital. At the spot, the police prepared the site plan (Ex.PW2/A) at his instance and also collected the exhibits i.e. blood, blood stained earth etc. from the spot. He did not remember whether police sealed the exhibits collected from the spot. His shirt was taken into possession by the doctor. Suit of his wife was also taken into possession by the police. The recovery memo (Ex.PW2/B) of the blood in cotton recovered from his house; recovery memo (Ex.PW1/B) of suit of his wife was prepared; and recovery memo (Ex.PW2/C) of blood stained earth control were prepared. Police also collected pieces of bangles of her wife from the spot vide recovery memo (Ex.PW2/D). His statement was recorded at his house. The accused was not apprehended by the police in his presence. He saw the accused in the police station after three days of occurrence.

22.As Mr.Praveen (PW2) was partly hostile as to the arrest of the accused, Additional Public Prosecutor for State has cross examined him. In his cross examination, Mr.Praveen (PW2) has denied the suggestion that the accused was apprehended in his presence or at his instance from his house on 11.04.2014. He voluntarily stated that he saw him in the police station. He has, however, admitted his signatures on the arrest memo (Ex.PW2/E) and the personal search memo (Ex.PW2/F) saying that he signed on these documents in the Police Station. He has denied the statement (Mark P2A). The witness denied having made that statement.

New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                             -:: Page 14 of 40 ::-
                                                        -:: 15 ::-



23.Mr.Praveen (PW2) has been cross examined by Amicus Curiae for the accused and in his cross examination, he has admitted that one or two days prior to the incident, he and his other family members had a fight with the accused. He has denied the suggestion that at that time, he assaulted the accused with a wooden stick or that the accused sustained injuries on his head and forehead because of his assault. He did not know whether after that assault, the accused was got medically examined. He has admitted that the police came to the spot after that earlier incident. He has admitted that they went to the Police Station along with the police on that day. His wife Ms. Usha was not present when the police arrived at the house qua that earlier incident. He has denied the suggestion that qua that earlier incident, the police was about to register an FIR against him or that he requested the police not to do so, otherwise, his government job would be lost. He has denied the suggestion that himself and his other family members requested the accused and the police and then the earlier case was got hushed up. He has denied the suggestion that on that day, he had planned that since that earlier case was against them, therefore they should compromise or that he had planned that they would subsequently implicate the accuse. The said another plot is not an open plot and other persons can not see inside the plot from outside. Other persons might have seen himself, Ms. Usha, his mother and accused Rakesh while going to and from the said open plot. He did not know whether police enquired from his mother also. In his presence, her statement was not recorded. After the incident of stabbing, many neighbours New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                             -:: Page 15 of 40 ::-
                                                        -:: 16 ::-



collected. Their total number may be around 100. He had told in his statement under section 161 of the Cr.P.C. that the accused was holding his mother and his wife when he entered the house. He was confronted with the statement (Ex.PW2/D1) where it is not so recorded. He had told in his statement under section 161 of the Cr.P.C. that the accused was under the influence of smack and he had consumed smack. He was confronted with the statement (Ex.PW2/D1) where it is not so recorded. He has denied the suggestion that one day prior to the incident, the accused lodged a complaint against him and his family in the police station. He has denied the suggestion that because of that complaint, he and his family have falsely implicated the accused. He has denied the suggestion that they wanted to put pressure on the accused to compromise the complaint given by the accused against them and therefore, they filed a false complaint. He has admitted that they did not hand over any receipt of gold chain and gold ear rings to the police. They also did not tell any special mark of identification of those articles to the police. They also did not tell the police the weight of those gold articles. They also did not describe the knife in his complaint to the police. The gold articles or the knife were not recovered during investigation. He has denied the suggestion that since knife was not used in the offence and since no gold articles were robbed, therefore, those details were not given by him or that therefore, those articles could not be recovered. He has denied the suggestion that the police did not recover any exhibit from the spot of incident or that the exhibits are planted. He has New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                             -:: Page 16 of 40 ::-
                                                        -:: 17 ::-



denied the suggestion that the suit of his wife was not torn and that the suit was deliberately torn and then given to the police to create false evidence. He has denied the suggestion that the accused did not commit any such kind of crime. He has denied that he was not even present at the time of incident at the place of incident. He has denied the suggestion that no such incident took place in his presence. He has denied that his injuries are self inflicted injuries or that he himself created those false injuries to implicate the accused. He has denied that he has deposed falsely.

24.It can be clearly seen that there are contradictions in the evidence of Ms.Usha (PW1) and Mr.Praveen (PW2) regarding the previous incident which occurred a few days prior to the present incident; the time of the incident; the presence of the mother of Mr.Praveen when the incident occurred; the accused holding the wife and mother of Mr.Praveen when he came to his house; the number of persons gathered at the spot; Mr.Praveen been taken to Shanti Nursing Home or SGM Hospital; who took Mr.Praveen to the hospital; etc.

25.The prosecution has failed to furnish any explanation in respect of the contradictions in the statements of the Ms.Usha (PW1) and Mr.Praveen (PW2), the most material witnesses. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence of Ms.Usha (PW1) and Mr.Praveen (PW2) suffers from New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                             -:: Page 17 of 40 ::-
                                                        -:: 18 ::-



such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the evidence of Ms.Usha (PW1) and Mr.Praveen (PW2) is the accused has been falsely implicated in the present case as their depositions cannot be treated as trustworthy and reliable.

26.Both Ms.Usha (PW1) and Mr.Praveen (PW2) have not deposed anything regarding the accused outraging the modesty of Ms.Usha (PW1). In fact, Ms.Usha (PW1) has deposed in her examination in chief that "In the meanwhile, accused took out a knife he was carrying. The accused started grappling with me in which my suit which I was wearing was torn." It is clear that the accused did not have any intention to outrage her modesty. There was apparently no intention of the accused to do so. Even Ms.Usha (PW1) has not stated that the accused intended or wanted to outrage her modesty and for this reason he had torn her suit. She has, in fact, deposed that in the grappling, her suit was torn. Therefore, it is clear that the accused has not outraged the modesty of Ms.Usha (PW1).

27.Another material witness is Mr.Sunil (PW8) who had reached the spot after the alleged occurrence and had taken Mr.Praveen (PW2) to Shanti Nursing Home along with his friend. His presence is doubtful as the MLC of Mr.Praveen (PW10/A) shows that Mr.Praveen (PW2) was brought to SGM Hospital by St.Sachin and New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                             -:: Page 18 of 40 ::-
                                                        -:: 19 ::-



          not Mr.Sunil.


28.All the above facts indicate that there is no veracity in the prosecution case in respect of the offence allegedly committed by accused Mr.Rakesh @ Monu and he merits to be acquitted.

MEDICAL AND FORENSIC EVIDENCE

29.It is clear from the record especially the evidence of PWs 1 and 2 that Ms.Usha (PW1) was not medically examined. Mr.Praveen (PW2) was first taken to Shanti Nursing Home and then to SGM Hospital for his treatment.

30.Mr.Praveen (PW2) has deposed that "As soon as I entered the house, accused stabbed me twice with the knife he was carrying. One stab blow was received by me on my chest and another stab blow was received on my left hand."

31.Ms.Usha (PW1) has deposed that "My husband came in between and my husband got stabbed with the knife. He stabbed my husband once again i.e. he stabbed him twice. He stabbed my husband on his stomach and the second injury on the hand of my husband was there."

32.As per Mr.Sunil (PW8), Mr.Praveen (PW2) had been given first aid in Shanti Nursing Home and then he was referred to SGM New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                             -:: Page 19 of 40 ::-
                                                        -:: 20 ::-



          Hospital.


33.The prosecution has failed to produce any medical record of Mr.Praveen (PW2) of Shanti Nursing Home and has also failed to cite and examined the concerned doctor (s) of Shanti Nursing Home. The initial medical record of Mr.Praveen of Shanti Nursing Home could have facilitated the Court in reaching a proper adjudication but its lack strikes a fatal blow to the prosecution case.

34.Dr.M.Das (PW10) under whose supervision Dr.Priyanka had medically examined Mr.Praveen in SGM Hospital has deposed that "One examination, two stitched wounds were observed on the left fora and one small sharp wound was observed on the left side lower part of chest."

35.The MLC of Mr.Praveen (Ex.PW10/A) shows that he has three injuries. There are two stitched wounds on his left forearm and one small sharp wound on his left side lower part of chest. The wound on the chest is superficial. The doctor has opined the nature of injuries to be simple sharp. The doctor has not opined if the injuries could have been caused with a knife.

36.It is clear from the evidence of Ms.Usha (PW1), Mr.Praveen (PW2) and Dr.M.Das (PW10) that there are contradictions in the number of injuries and the places of injuries received by New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                             -:: Page 20 of 40 ::-
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Mr.Praveen (PW2). The prosecution has not been able to explain as to how the Dr.M.Das (PW10) had treated three injuries when only two were received by Mr.Praveen (PW2) and why there is contradiction regarding the stabbing in the chest and stomach. How the third injury came into existence has not been explained by the prosecution.

37.Further as the weapon of offence has not been recovered, there is no forensic evidence.

38.Therefore, it can be held that the medical evidence is doubtful and there is no forensic evidence against the accused.

PLACE OF INCIDENT

39.As per DD No.24A (Ex.PW7/A), the incident occurred in House No. 551, Village Jonti, Delhi.

40.As per FIR (Ex.PW7/B), the incident occurred in House No. 552, Village Jonti, Delhi.

41.As per Ms.Usha (PW1), the incident occurred in her house i.e. House No. 512, Village Jayanti, Delhi.

42.As per Mr.Praveen (PW2), the incident occurred in his house in New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                             -:: Page 21 of 40 ::-
                                                        -:: 22 ::-



          Village Jaunti, Delhi.


43.As per Ct.Rajesh Kumar (PW3), Ct.Sachin (PW4) and SI Sandeep (PW9), the incident occurred in house No.552 in Village Jonti, Delhi.

44.As per Mr.Sunil (PW8), the incident occurred in H.No.552, Village Jonti, Delhi.

45.The place of incident as per the charge framed against the accused is House No.552, Village Jonti, Delhi.

46.The site plan of the place of incident (Ex.PW2/A) shows the same as House No.556 V.P.O. Jaunti Vill. Delhi.

47.It can be seen from the evidence of the prosecution witnesses and the site plan that there is contradiction in the place of incident. This contradiction has not been explained by the prosecution as well as the prosecution witnesses due to which the place of incident is not clear and this fact is a fatal blow to the prosecution story. The place of alleged incident has not been explained in the site plan as per the prosecution version and the same makes the case doubtful.

ROBBED ARTICLES New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

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48.Ms.Usha (PW1) has deposed that the accused had robbed her of her gold chain and gold ear rings which she was wearing at the time of incident. In her cross examination, she has admitted that she did not hand over any receipt of gold chain and gold ear rings to the police. She also did not tell any special mark of identification of those articles to the police. She also did not tell the police the weight of those gold articles. She also did not describe the knife in her complaint to the police. The gold articles or the knife were not recovered during investigation. Apparently she did not have any photographs of her gold chain and gold ear rings as the same were also not given to the police.

49.Ms.Usha (PW1) could not even describe her gold ornaments nor give any specific identification mark on them nor produced their receipts/bills nor even produced their photographs and that the robbed articles were not recovered from the possession of the accused or at his instance. These facts give a shattering blow to the prosecution case making it unreliable and unbelievable. She has not even received any injury when the gold ornaments were allegedly snatched from her nor she was medically examined also gives a fatal blow to the prosecution version.

WEAPON OF OFFENCE

50.Ms.Usha (PW1) and Mr.Praveen (PW2) have deposed that the accused was attempting to stab Ms.Usha (PW1) but Mr.Praveen (PW2) intervened and he got stabbed with the knife carried by the New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                             -:: Page 23 of 40 ::-
                                                        -:: 24 ::-



          accused.


51.In the MLC of Mr.Praveen (Ex.PW10/A) the doctor has not opined if the injuries could have been caused with a knife.

52.Ms.Usha (PW1) and Mr.Praveen (PW2) failed to describe the knife in the complaint and also did not describe it in their evidence. The alleged knife was not recovered from the possession of the accused or at his instance. These facts make the prosecution version unreliable.

MATERIAL WITNESSES NEITHER CITED NOR EXAMINED

53.The prosecution has failed to examine some very material witnesses and this lapse gives a severe blow to the prosecution case.

54.The prosecution has failed to associate in the investigation, the consumer/owner of 9999945170 who informed the police about injury regarding which DD No.24A (Ex.PW7/A) was registered.

55.It is clear from the evidence of the prosecution witnesses that Inspector Tarif Singh had gone to the spot but he is neither cited as a witness nor examined by the prosecution.

56.Mother of Mr.Praveen who was present in the house and had seen New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                             -:: Page 24 of 40 ::-
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the alleged incident has not been cited and examined by the prosecution.

57.Ms.Savita wife of Mr.Naveen (brother of Mr.Sunil) who informed Mr.Sunil (PW8) about the incident has not been cited and examined by the prosecution.

58.Mr.Vijender, friend of Mr.Sunil who had taken Mr.Praveen (PW2) with Mr.Sunil (PW8) to Shanti Nursing Home has not been cited and examined by the prosecution.

59.No doctor of Shanti Nursing Home has been examined nor any record of Shanti Nursing Home has been produced.

60.The public witnesses who had gathered at the spot have also not been associated in the investigation.

61.The prosecution has not been able to furnish any explanation as to why none of the above witnesses were examined.

62.By not citing, producing and examining the above persons, the prosecution has left out some very material evidence which may have been of some help to the prosecution in this case against the accused.

New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                             -:: Page 25 of 40 ::-
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INVESTIGATION


63.It is clear on perusal of the record that there are several discrepancies and violations made by the police in the investigation. Apparently an innocent man has been falsely implicated in the present case, as discussed above. Mr.Praveen (PW2) whose evidence was very material to the prosecution case has retracted from his earlier statement regarding his presence at the time of arrest of the accused and was declared hostile by the prosecution. He has not supported the prosecution version regarding his presence when the accused was arrested.

64.Ct.Ajay (PW5) has, infact, admitted that the accused was arrested from his house and the all the documents of his arrest i.e. arrest memo, personal search memo, disclosure statement were prepared in the Police Station where he was detained for about 1- 1 ½ hours. This indicates the possibility of false implication of the accused and that he may have been forced to sign on the documents as he was kept in the Police Station.

65.It is also clear that some very material witnesses have not been associated in the investigation, as discussed above. They have neither been cited as witnesses nor produced nor examined by the prosecution. The prosecution has failed to examine some very material witnesses and this lapse gives a severe blow to the prosecution case.

New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                             -:: Page 26 of 40 ::-
                                                        -:: 27 ::-




66.Neither the recovery of the robbed gold ornaments nor the weapon of offence i.e. knife has been effected due to which the possibility of false implication of the accused cannot be ruled out.

67.The police has also not made any enquiry about DD No.4A dated 08.04.2014 (Ex.DW2/A) and DD No.18A (Ex.DW2/B) regarding the quarrel between the accused and Mr.Praveen (PW2) in which the accused was injured and medically examined vide MLC (Ex.DW1/A). The said matter was compromised. As there was a dispute earlier between the accused and Mr.Praveen (PW2), the possibility of false implication of the accused in the present case cannot be ruled out. The Investigation Officer was required to consider the same while investigating the present case especially since there was no recovery of the alleged robbed articles and the alleged weapon of offence i.e. knife.

68.There is an unexplained delay in the recording the statement under section 164 of the Cr.P.C. of the complainant (Ex.PW1/C). There is no reason explained as to why there is a delay in getting the statement under section 164 of the Cr.P.C. of Ms.Usha (PW1) recorded when the alleged incident occurred on 09.04.2014 and the statement under section 164 of the Cr.P.C. of Ms.Usha (PW1)was recorded on 01.05.2014.

New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                             -:: Page 27 of 40 ::-
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69.There is no medical or forensic evidence against the accused. The investigation is not proper as neither any photographs of the scene of crime were taken nor videography was done nor Crime Team called at the spot.

70.Undoubtedly, heinous crimes are committed under great secrecy and that investigation of a crime is a difficult and tedious task. However, from the facts and circumstances of this case, it appears that the Investigating Officer has taken the accused for ride and trampled upon his fundamental personal liberty and lugged him in the capital offence punishable under section 302 of the IPC by freely fabricating evidence against the innocent. The liberty of a citizen is precious and its deprivation shall be only in accordance with law. Before accusing an innocent person of the commission of a grave crime like the one punishable under S.302 IPC an honest, sincere and dispassionate investigation has to be made and to feel sure that the person suspected of the crime alone was responsible to commit the offence. Indulging in free fabrication of the record is a deplorable conduct on the part of an investigating officer which undermines the public confidence reposed in the investigating agency. Therefore, greater care and circumspection are needed by the investigating agency in this regard. It is time that the investigating agencies evolve new and scientific investigating methods, taking aid of rapid scientific development in the field of investigation. It is also the duty of the State i.e Central or State Governments to organise periodical refresher courses for the New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

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investigating officers to keep them abreast of the latest scientific development in the art of investigation and the march of law so that the real offender would be brought to book and the innocent would not be exposed to prosecution. (Reliance can be placed upon the judgment reported as Kishore Chand v. State of H.P., AIR 1990 SC 2140).

71.The investigation conducted in the present case has been deposed by police witnesses. The documents have been proved by their authors and signatories to the same. However, there is nothing on the record which could show that the investigation has been conducted properly, fairly and impartially.

72.It must be mentioned here again that the prosecution story is unreliable and not worthy of credence, as discussed above. It would have been appropriate that these lapses were not committed considering the gravity of the case.

73.It is the actual crime which is important than the investigation.

Where the actual crime is being elaborated and proved in the evidence of the prosecution witnesses, then the investigation becomes less important.

74.There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                             -:: Page 29 of 40 ::-
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investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.

75.In the present case, the investigation is bad and shoddy.

Documents have been fabricated; recovery of alleged weapon of offence and robbed articles has not been effected; witnesses have not supported the case. The investigation does not appear to have been conducted fairly and properly.

MENS REA AND DEFENCE OF ACCUSED

76.Regarding the motive of crime, it may be observed that in a case based on evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.

77.The motive has to be gathered from the surrounding circumstances and such evidence should from one of the links to the chain of evidence. The proof of motive would only strengthen the prosecution case and fortify the Court in its ultimate conclusion but in the absence of any connecting evidence or link which would be New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                             -:: Page 30 of 40 ::-
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sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, submerged and un- amenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.

78.In the present case, a story has been projected that the accused has committed the offences of house trespass, robbery with deadly weapon i.e. knife, use of knife in commission of robbery and outraging the modesty of a woman. This version appears to be untrue as there is no reason why he would do so. No reason is shown by the prosecution as to why the accused would jeopardize his future. Admittedly there was a dispute enmity between the accused and Mr.Praveen (PW1) and the matter was even reported to the police vide DD No.4A (Ex.DW2/A) which was compromised subsequently vide DD No.18A (Ex.DW2/B).

79.There is nothing on the record to show that the accused has committed the offence, as alleged by the prosecution. He is a mature man and capable of understanding the implications of his acts. He has completely denied committing the offence.

New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                             -:: Page 31 of 40 ::-
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80.In the present case, there is no evidence on record to show that the accused did have a motive to commit the offence. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. However, there can be no sweeping generalization. Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.

81.There does not appear to be any criminal intention and mens rea on the part of the accused.

82.In his statement under section 313 of the Cr.P.C., the accused has stated that he is innocent and has been falsely implicated in this case. He has stated he did not pursue his complaint of beating and injuring him against Mr.Praveen (PW2) on his request and request of his family as Mr.Praveen who is employed in the Armed Forces may lose his job and as they assured that they will not beat him again. However, he was falsely implicated in the present case. DD No.4A (Ex.DW2/A) and DD No.18A (Ex.DW2/B) clearly show that a call making complaint to the police was made that there was quarrel at H.No.611 (house of accused) and the matter was compromised subsequently. The fact that Mr.Praveen (PW2) is New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                             -:: Page 32 of 40 ::-
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employed in the Armed Forces and could lose his job is a good reason for the accused to compromise and his version does appear to be genuine.

83.There is no medical and forensic evidence against the accused.

There is no recovery of the alleged weapon of offence and robbed articles. The first medical record of Shanti Nursing Home of Mr.Praveen (PW2) has not been produced and proved. It is also clear while discussing the evidence of the prosecution, as above, that the prosecution version is neither reliable nor believable.

84.In the judgment Partap v. The State of Uttar Pardesh, AIR 1976 Supreme Court 966 has reported that the burden is on the accused to establish a plea of self defence and that on the prosecution to prove its case. The burden on the accused is not as onerous as that which lies on the prosecution. While the prosecution is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by establishing a mere preponderance of probability.

85.The defence of the accused although is not proved but considering the unreliable evidence of the prosecution which suffers from overwhelming contradictions and glaring inconsistencies, the prosecution version is neither believable nor reliable nor trust worthy.

New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                             -:: Page 33 of 40 ::-
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86.The case of the prosecution has to stand of its own legs and is required to prove all its allegations against the accused and all the ingredients of the offence alleged to have been committed by the accused.

87.Therefore, as the prosecution version is unreliable and unbelievable that the accused had house trespassed into the house of Ms.Usha (PW1) and Mr.Praveen (PW2), robbed Ms.Usha (PW1) of her gold chain and gold ear rings, injured Mr.Praveen (PW2) with a knife and outraged the modesty of Ms.Usha (PW1), the defence of the accused appears to be plausible that he has not committed any offence.

FINAL CONCLUSION

88.The prosecution has failed to furnish any explanation in respect of the numerous inconsistencies in the statements of the witnesses of the prosecution. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the witnesses of the prosecution suffer from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                                          -:: Page 34 of 40 ::-
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evidence of the prosecution witnesses is that the accused has not committed the alleged offences.

89.Prosecution must lead positive evidence to give rise to inference beyond reasonable doubt that accused had committed the offences.

90.Since the evidence of the prosecution is neither reliable nor believable as there are overwhelming contradictions and inconsistencies in the statements and evidence of the prosecution witnesses, the conscience of this Court is completely satisfied that the prosecution has not been able to bring home the charge against the accused. The prosecution story does not inspire confidence and is not worthy of credence.

91.In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:

i. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
ii. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; iii. The circumstances should be of conclusive nature and tendency;

iv. They should exclude every possible hypothesis except New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                                        -:: Page 35 of 40 ::-
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                               the one to be proved; and
                       v.      There must be a chain of evidence so complete as not

to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

92.Applying the above principles of law to the facts of present case, it stands established that the accused had neither committed house trespass nor robbery nor robbery with deadly weapon nor outraged the modesty of a woman. There is no incriminating evidence against the accused. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such incidents ever took place.

93.Consequently, no inference can be drawn that the accused is guilty of the charged offences as the testimony of the prosecution witnesses is unreliable and unworthy of credence.

94.Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecution is found to be improbable, prosecution case becomes liable to be rejected.

95.If the prosecution evidence is read and considered in totality of New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                             -:: Page 36 of 40 ::-
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circumstances along with other material on record, in which offence is alleged to have been committed, the deposition does not inspire confidence and is unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. Prosecution has not disclosed true genesis of crime.

96.It is a case of heinous crime of murder which carries grave implication for the accused, if convicted. Therefore, for convicting any person for the said offence, the degree of proof has to be that of a high standard and not mere possibility of committing the said offence. In a criminal case, the prosecution has to prove its case beyond reasonable doubt against the accused. The prosecution story does not inspire confidence and is not worthy of credence. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such incidents ever took place.

97.The prosecution has failed to prove that it is accused and none else who is culprit and had house trespassed into the house of Ms.Usha (PW1) and Mr.Praveen (PW2), robbed Ms.Usha (PW1) of her gold chain and gold ear rings using a knife, injured Mr.Praveen (PW2) with a knife while committing robbery and outraged the modesty of Ms.Usha (PW1).

New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                             -:: Page 37 of 40 ::-
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98.The prosecution has miserably failed to prove that on 09.04.0214 at about 07:00 pm at House No. 552, Village Jonti, Delhi within the jurisdiction of Police Station Kanjhawala, the accused armed with a knife which is a deadly weapon, committed robbery of one gold chain and one gold ear tops from the complainant Ms. Usha wife of Mr.Praveen and he used that deadly weapon while committing robbery. The prosecution has miserably failed to prove that during the above said date, time and place, the accused voluntarily caused hurt, in the process of committing robbery, to Mr. Praveen husband of Ms.Usha causing simple injuries with the help of said knife upon him. The prosecution has miserably failed to prove that during the above said date, time and place, the accused committed house trespass into the above mentioned house of the complainant having made preparation to cause hurt and commit robbery. The prosecution has miserably failed to prove that on the above said date, time and place, the accused outraged the modesty of Ms. Usha wife of Mr. Praveen tearing her clothes.

99.All the above facts indicate that there is no veracity in the prosecution case in respect of the offences of house trespass into the house of Ms.Usha (PW1) and Mr.Praveen (PW2), robbing Ms.Usha (PW1) of her gold chain and gold ear rings using a knife, injuring Mr.Praveen (PW2) with a knife while committing robbery and outraging the modesty of Ms.Usha (PW1) by accused Mr.Rakesh @ Monu and the accused merits to be acquitted for the offence punishable under sections 397, New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                             -:: Page 38 of 40 ::-
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          394, 452 and 354 of the IPC.


100. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against the accused Mr.Rakesh @ Monu.

101. Accordingly, Mr.Rakesh @ Monu, the accused, is hereby acquitted of the charges for the offences of offences of of house trespass into the house of Ms.Usha (PW1) and Mr.Praveen (PW2), robbing Ms.Usha (PW1) of her gold chain and gold ear rings using a knife, injuring Mr.Praveen (PW2) with a knife while committing robbery and outraging the modesty of Ms.Usha (PW1) punishable under sections 397, 394, 452 and 354 of the IPC.

COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER FORMALITIES

102. Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.

103. Case property be confiscated and be destroyed after expiry of period of limitation of appeal.

104. One copy of the judgment be given to the Additional Public Prosecutor, as requested.

New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                             -:: Page 39 of 40 ::-
                                                        -:: 40 ::-




105. After the expiry of the period of limitation for appeal and completion of all the formalities, the file be consigned to record room.

Announced in the open Court (NIVEDITA ANIL SHARMA) on this 30th day of July, 2016. Special Judge (NDPS) North-West, Additional Sessions Judge, Rohini Courts, Delhi.

********************************************************** New Sessions Case Number : 52019/2016.

Old Sessions Case Number : 69 of 2014.

Unique ID Number : 02404R0210032014 FIR No.282/2014 , Police Station Kanjhawala, Under sections 392/397/452/354 of the Indian Penal Code.

State v. Rakesh @ Monu.                                                            -:: Page 40 of 40 ::-