Delhi District Court
State vs . Ramesh Kumar & Ors on 11 July, 2022
DLSE020064072018
IN THE COURT OF SH. ANIMESH KUMAR, METROPOLITAN MAGISTRATE06,
SOUTH EAST DISTRICT, SAKET COURTS, NEW DELHI
STATE VS. Ramesh Kumar & Ors
FIR NO: 468/17
P. S Kalkaji
U/s 356/379/34 & 411 IPC
Crc No./1275/2018
JUDGMENT
Date of its institution : 07.03.2018
Name of the complainant : Ms. Yogita,
D/o Sh. Sushil Kumar,
R/o H. NO. 513, Ayur Vigyan
Nagar, New Delhi.
Date of Commission of offence : 30.09.2017
Name of the accused : 1. Ramesh Kumar,
S/o Sh. Jai Singh,
2. Dhani Ram,
S/o Sh. Jai Singh,
3. Saudan,
S/o Pappu,
R/o Village Hasanpur, Distt.
Palwal, Tehsil Hodal,
Haryana.
Plea of accused : Not Guilty
ANIMESH Digitally signed by
ANIMESH KUMAR 1
KUMAR Date: 2022.07.11
18:05:52 +0530
Case reserved for orders : 09.06.2022
Final Order : Acquitted
Date of orders : 11.07.2022
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. Vide this judgment, I seek to dispose off the case of the prosecution filed against the accused persons namely Ramesh Kumar, Dhani Ram and Saudan for having committed the offence punishable u/s 356/379/34 & 411 of Indian Penal Code, 1861 (hereinafter referred as "IPC").
2. Briefly stated, as per the case of prosecution the complainant had gone to Kalkaji mandir on 30.10.2017. At about 01:15 PM, when she was waiting in queue for darshan, 3 boys and one girl started to push each other from the back due to which she had lost her balance. Thereafter, she entered the main mandir and came back. After coming back from the main mandir she found that her gold chain was missing from her neck. Thereafter, she went to PS and gave her written complaint Ex. PW1/A.
3. After the registration of present case, the accused Ramesh was apprehended on the very same date of incident at about 08:00 PM by public. He was being beaten up by the public when he was rescued by police official. The said accused was brought to PS where his personal search was conducted. During the personal search stolen gold chain of complainant was recovered from his possession. At his instance, the other accused persons were also arrested.
4. Thereafter, on the next date i.e. 31.10.2017 at about 11:00 AM the complainant was informed by the police officials regarding apprehension of accused persons and recovery of her gold chain. Thereafter, the complainant went to PS where she had correctly identified her gold chain. She got the gold chain released on superdari from the court.
2ANIMESH Digitally signed by
ANIMESH KUMAR
Date: 2022.07.11
5. After completing the formalities, investigation was carried out by PS Kalkaji and a charge sheet was filed against the accused persons. Thereafter, charge u/s 356/379/34 & 411 IPC was framed against the accused persons vide order dated 02.07.2019, to which they pleaded not guilty and claimed trial.
6. In order to prove the guilt of accused persons, the prosecution examined following five witnesses:
Ms. Yogita Prabhakar, complainant in the present case deposed as PW1; HC Satbir Singh, deposed as PW2;
Sh. Jafar Ali deposed as PW3;
Retired SI Yashpal Singh deposed as PW4; and Inspector Santosh Pabri deposed as PW5.
7. PW1 deposed that on 30.10.2017, at about 1.15 p.m. she visited Kalkaji mandir with her parents where she was waiting for the darshan in queue. The place was too crowded. When they were standing in the queue of mandir, three boys and one girl were standing and they started to push each other from the back due to which the complainant and her family members lost balance and got disbursed from each other. When they entered the main mandir and returned back, she found that her chain was missing from her neck. The gold chain was about 01 tola. They went to the police station to file FIR on the same day. She gave written complaint to the police Ex.PW1/A. On the next day i.e. 31.10.2017, at about 11.00 a.m., they received a call from police station stating that they have arrested accused persons and have got recovered one gold chain from them. Thereafter, PW1 went to the police station where the police official showed her the gold chain and asked her to identify that the gold chain belongs to her or not. After seeing the gold chain, she identified it. She also handed over the photocopy of bills of gold chain marked as MarkA.
8. PW2 deposed that on 30.11.2017, at about 08:00 PM, he received a call from guard of Kalkaji Mandir who informed him that some people from the crowd were beating one person. He reached at the spot within 05 minutes. He along with guard brought that 3 Digitally signed by ANIMESH ANIMESH KUMAR KUMAR Date: 2022.07.11 18:06:08 +0530 person to the temporary police check post which is situated near Kalkaji Mandir. Thereafter, he went with the injured to the PS and informed IO SI Santosh. IO interrogated and personally searched the accused whereupon a gold chain was recovered from his right pocket. Thereafter, accused was arrested in presence of HC Satbir vide arrest memo Ex. PW2/A. IO seized the recovered chain and put it in the pullanda and sealed it with the seal of SP. During interrogation, he disclosed that two other boys were involved.
9. PW3 deposed that some public persons were beating accused Ramesh. PW3 called HC Satbir who came at the spot and rescued him and took the accused to PS.
10. PW4 deposed that on 30.9.2017 complainant named Yogita went to PS and gave a written complaint related to one gold chain snatching already Ex. PW1/A. Thereafter, He endorsed the complaint and handed over to DO for registration of FIR.
11. PW5 deposed that on 30.09.2017, he had received the present case from ASI Yashpal for investigation. On 30.09.2017, HC Satbir handed over accused Ramesh to the O. HC Satbir told that Ramesh along with other coaccused persons had snatched the chain of the complainant from Kalkaji Temple. Public persons apprehended accused Ramesh and beaten him. Other coaccused persons fled away from the spot. Guard Jitender apprehended accused Ramesh and handed over to HC Satbir. He interrogated accused Ramesh who disclosed that coaccused persons have snatched a chain from a girl at noon. Accused Ramesh produced the chain. Thereafter, accused Ramesh was arrested Ex. PW2/A. PW5 also personally searched accused Ramesh vide memo Ex. PW5/D. Thereafter, PW5 seized the chain vide memo Ex. PW5/A. After receiving the present case, he recorded the supplementary statement of complainant vide Mark A and also prepared site plan vide memo Ex. PW5/B. He recorded disclosure statement of accused Ramesh vide memo Ex. PW5/C. He along with other staff and accused went to Palwal in search of coaccused persons. Coaccused Saudan and Dhani Ram were found at Palwal bus stand and at the instance of accused Ramesh, they apprehended the co ANIMESH Digitally signed ANIMESH KUMAR 4 by KUMAR Date: 2022.07.11 18:06:15 +0530 accused persons and interrogated them. After interrogating the coaccused Saudan and Dhani Ram, he arrested them and conducted their personal search vide memos Ex. PW5/E to Ex. PW5/H. He recovered the gold chain from both coaccused persons and seized the same in 102 Cr.PC. He also recorded disclosure statement of coaccused persons namely Saudan and Dhani Ram Ex. PW5/I and Ex. PW5/J. Thereafter, accused persons were brought back to PS and got conducted their medical examination and produced before the court. He obtained PC remand of accused persons from the court for want of coaccused Shakuntla. PW5 searched coaccused Shakuntla but could not trace her. He filed an application for TIP before court but accused persons refused the same. He got conducted the TIP of case property in which witness correctly identified the same. He took the bill of the case property from complainant already mark A. He also recorded the supplementary statement of complainant. Thereafter, the case property was released to the complainant on superdari Mark B. Thereafter, He got transferred and the case file was handed over to MHC R.
12. Accused persons have admitted certain documents under Section 294 Cr.P.C. the factum of registration of FIR and authenticity of TIP proceedings which are Ex.P1 to P2.
13. After examination of all prosecution witnesses, at the request of Ld. APP, PE was closed on 31.03.2022. Thereafter, statement of the accused persons were recorded on 26.04.2022 u/s 313 Code of Criminal Procedure, 1973 ("Cr.P.C") wherein they denied the allegations and claimed to have been falsely implicated.
14. The Ld. APP urged that testimony of complainant could be relied upon even though he has resiled from his statement during his crossexamination. The testimonies of other material witnesses have remained unchallenged in the crossexamination and there is no reason to doubt their testimonies. The Ld. Counsel for the accused, on the other hand, argued that material contradictions have appeared in the testimonies of the PWs and Digitally signed by ANIMESH ANIMESH KUMAR 5 KUMAR Date: 2022.07.11 18:06:21 +0530 prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. Hence, benefit of doubt must be given to the accused.
15. I have heard the Ld. APP and Ld. defence counsel and have perused the case file.
CULPABILITY FOR THE OFFENCE PUNISHABLE U/S 356/379/34 IPC
16. Perusal of testimonies available on record clearly suggests that there is absolutely no incriminating evidence against accused persons which shows that the they have stolen the gold chain of the complainant or have been involved in any manner in the snatching of said chain and thereby committed an offence punishable u/s 356/379/34 IPC.
17. PW1, the complainant of the present case, failed to support the case of prosecution qua the fact that accused persons had snatched her golden chain when she had visited Kalkaji temple and was standing in queue. During her examination, she had specifically stated that she was not able to see the faces of the culprits at the time they had surrounded her. She had further stated that she could not identify the accused persons even if they were produced before her.
18. Identity of the accused in a criminal trial is of utmost importance and the prosecution is required to establish the same beyond reasonable doubt. One of the main pillars of the proof of prosecution's case stands on the identification of accused which should be clear, cogent and trustworthy. Any discrepancy in this regard makes the case of prosecution weaker.
19. In the instant case, there is no other eye witness. Even the complainant could not identify the accused persons. There is no other incriminating evidence against the accused for the offence of snatching. Interestingly, the relevant CCTV footages from the temple premise were never collected during the course of investigation.
20. Rest of the witnesses examined by prosecution were police witnesses who were not present at the spot at the time of incident. Their testimonies are entirely based upon the 6 ANIMESH Digitally signed by ANIMESH KUMAR Date: 2022.07.11 18:06:29 disclosure statements of the accused persons which are not admissible in evidence per se. Hence, their testimonies would not be sufficient enough to properly establish the identity of the accused persons in the present case as the persons who had snatched the gold chain of complainant.
21. Therefore, in view of the above, I am of the considered view that the prosecution has failed to prove the guilt of accused persons beyond reasonable doubt for the offence punishable u/s 356/379/34 IPC.
CULPABILITY FOR THE OFFENCE u/s 411 IPC
22. As per the prosecution, the stolen gold chain was recovered from the possession of accused Ramesh during the course of investigation. Hence, he was also alternatively charged for the specific offence punishable u/s 411 IPC.
23. Section 411 IPC deals with the offence of dishonestly receiving stolen properties. It reads as under:
"411. Dishonestly receiving stolen property.--Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
24. In the case of Rajender Kumar Vs. State (Delhi Administration), (1983) 23 Del LT 42, it was held that in order to bring home the guilt of the person under this provision, it is the duty of the prosecution to prove the following:
(i) That the stolen property was in the possession of the accused;
(ii) That some person, other than the accused had the possession of the property before the accused got possession of it, and
(iii) That the accused had knowledge that the property was the stolen property.7
ANIMESH Digitally signed by
ANIMESH KUMAR
KUMAR Date: 2022.07.11 18:06:36
+0530
25. Therefore, the crucial fact which needs to be established by the prosecution in order to bring home the culpability of accused is the fact of recovery of stolen property from the possession of accused and existence of knowledge about the phone being a stolen property. In order to prove this, the prosecution has primarily relied upon the testimonies of HC Satbir, Jafar Ali and the IO Inspector Santosh Pabri.
26. First and foremost, it should be noted that as per the prosecution, PW2 HC Satbir had received a phone call on 30.11.2017 at 8 PM regarding beating of a person by the public. The said phone call was allegedly made by guard of Kalkaji Mandir. Thereafter, he along with the guard brought the said person to the temporary check post and subsequently took him to the PS where the stolen gold chain was recovered during the personal search. PW2 in his cross examination had revealed that the name of the said guard was "Jitender".
27. However, interestingly, no person in the name of "Jitender" was examined by the prosecution during the trial. One person "Jafar Ali" was examined as PW3 by the prosecution as the guard who had called PW2. He could not produce any identity card in the Court. In his crossexamination, he had stated that he did not catch the accused and it was public who had caught the accused. This is a material contradiction in the case of prosecution as the IO PW5 had stated in his testimony that it was the guard of Kalkaji temple who had apprehended the accused and handed over to PW2.
28. Further, it should be noted that the alleged recovery of the stolen gold chain from the accused Ramesh could not be conclusively established by the prosecution in as much as no public witness or independent witnesses were examined by the prosecution during the trial. In fact, none of them apart from Jafar Ali were joined in the investigation.
29. It is a well settled proposition that nonjoining of public witness shrouds doubt over the fairness of the investigation by police. Section 100(4) of the Cr.PC also casts a statutory duty on an official conducting search to join two respectable persons of the Digitally signed 8 by ANIMESH ANIMESH KUMAR KUMAR Date: 2022.07.11 society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation.
30. While the testimony of the police officials cannot be discarded away merely because of the fact that no public witnesses were not examined, however, their testimonies should be scrutinized in more detail. If it is found the police officials during the course of investigation did not even make endeavour to ask the public witnesses to join the investigation, did not even ask their names and details etc. then it would cast a very serious doubt on the testimonies of the police officials. At this stage, reference can be taken from the decision of the Hon'ble Supreme Court in the case of Tahir v. State (Delhi) [(1996) 3 SCC 338], dealing with a similar question, the Hon'ble Apex Court held interalia the following:
"In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case. The obvious result of the above discussion is that the statement of a police officer can be relied upon and even form the basis of conviction when it is reliable, trustworthy and preferably corroborated by other evidence on record."
31. The requirement of the police officials to make endeavour to ask the public witnesses to join the proceedings was discussed by the Hon'ble Supreme Court in the 9 Digitally signed by ANIMESH ANIMESH KUMAR Date: 2022.07.11 case of Sahib Singh vs. State of Punjab AIR 1997 SC 2417, wherein it interalia held the following:
"In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found as in the present case that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility".
32. Similar observation was made by the Hon'ble Punjab & Haryana High Court in the case of Roop Chand vs. State of Haryana 1999 (1) CLR 69, wherein the Hon'ble Court while discussing the role of public witnesses in criminal investigation, had interalia held the following:
"4. It is well settled principle of the law that the investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the investigation officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the investigating officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from public is an afterthought and is not worth credence. All these facts taken together make the prosecution case highly doubtful."10
ANIMESH Digitally signed by
ANIMESH KUMAR
KUMAR Date: 2022.07.11
18:06:55 +0530
33. Further, the Hon'ble Supreme Court in the case of Pradeep Narayan Madgaonkar v. State of Maharashtra (1995) 4 SCC 255 dealt with the issue of the requirement of the examination of an independent witness, and whether the evidence of a police witness requires corroboration. The Hon'ble Apex Court held that though the same must be subject to strict scrutiny, however, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and are either interested in the investigation or in the prosecution. However, as far as possible the corroboration of their evidence on material particulars should be sought.
34. Therefore, in view of the above mentioned case law, it becomes clear that while the testimony of the police officials cannot be discarded away forthwith in the absence of any public witnesses, however, it would be prudent to examine or scrutinise their testimonies more closely and should preferably be corroborated. Accused may be convicted on the basis of the testimonies of the police officials if their testimonies are found to be reliable and trustworthy.
35. In the instant case, as mentioned in the preceding paragraph of this judgment, PW2 & PW5 were the only witnesses who were examined by the prosecution in order to prove the factum of recovery of stolen mobile phones. No effort was made by these witnesses in order to join the public witnesses during the investigation. This could be established from the testimony of the IO who had admitted in the crossexamination that he had not served any notice to public person to join the investigation. He had also admitted that he had not made any recovery witnesses. He did not provide any explanation for not joining any public witness at the time of recovery.
36. Also, it should be noted that the mobile phone of the complainant was snatched on 30.09.2017 at around 1:15 PM and the case property was allegedly recovered from the possession of accused Ramesh on the same day itself after 8 PM. As per the testimony of the IO PW5, the accused Ramesh along with other coaccused persons had snatched the 11 ANIMESH Digitally signed by ANIMESH KUMAR KUMAR Date: 2022.07.11 18:07:01 +0530 chain of the complainant and the public had apprehended them and also beaten them. He had further stated that the other coaccused persons managed to escape from the spot and guard Jitender apprehended the accused Ramesh and handed over to PW2.
37. This is nothing but a botched up attempt on the part of IO to implicate the accused Ramesh in the present case. When the gold chain was stolen at 11 AM, it would not have been possible for the public persons to apprehend them at 8 PM while committing the crime. It is the not the case of prosecution that the accused Ramesh was apprehended by the public while committing another offence. No explanation could be provided by the prosecution on this contradiction. Also, the person "Jitender" has never examined during the investigation.
38. Hence, in view of the above discussion and finding, I am of the considered view that the prosecution has miserably failed to prove the guilt of accused Ramesh for offence u/s 411 IPC beyond reasonable doubt.
39. Therefore, in view of the above facts and circumstances, all the accused persons namely Ramesh Kumar, Dhani Ram and Saudan stand acquitted for the offence punishable u/s 356/379/34 IPC. Further, accused Ramesh also stands acquitted for the offence punishable u/s 411 IPC.
ANIMESH
Announced in the open court on 11.07.2022
Digitally signed by
ANIMESH KUMAR
KUMAR Date: 2022.07.11
18:07:07 +0530
(Animesh Kumar)
MM06, South East, New Delhi
It is certified that this judgment contains 12 pages and each page bears my signatures.Digitally signed by ANIMESH KUMAR
ANIMESH KUMAR Date: 2022.07.11 18:07:15 +0530 (Animesh Kumar) MM06, South East, New Delhi/11.07.2022 12