Delhi District Court
State vs . Kamal on 20 October, 2011
1 FIR No:186/2010
State Vs. Kamal
IN THE COURT OF Dr. JAGMINDER SINGH: METROPOLITAN
MAGISTRATE, DWARKA COURTS, NEW DELHI
FIR NO: 186/2010
PS: Dabri
U/s 356/379/34 IPC
State V. Kamal
Date of institution of the case : 07/09/2010
Date on which Judgment was reserved : 19/10/2011
JUDGMENT
a) S. No. of the case : 329/2
b) Date of commission of offence : 29/05/2010
c) Name of the Complainant : Ranjana Kumari
W/o Sh. Hari Shankar
R/o D-5/9, Vashist Park,
Pankha Road, New Delhi.
d) Name of accused and address : 1) Kamal
S/o Sh. Raghbir Singh
R/o Vill. & P.O: Katina,
2 FIR No:186/2010
State Vs. Kamal
PS:Sadar, Distt. Nainital
(Uttra khand)
e) Offence complained of : U/s 356/379/34 IPC
f) Plea of accused : Pleaded not guilty
g) Final order : Acquitted
h) Date of such order : 19/10/2011
BRIEF STATEMENT OF THE REASONS FOR THE DECISION :-
1. The present case was registered on the complaint of complainant Smt. Ranjana Kumari in which she alleged that on 29.05.2010 at about 9.00 pm she was going towards her house. When she reached in front of H.No.D-4/51, Vashist Park, New Delhi, two persons came at black colour Pulsar motorcycle without number plate and pulled away the golden chain of 2 ½ tola from her neck. She tried to catch them but could not succeed. She further stated that she can identify both of accused persons if shown to her. At 3 FIR No:186/2010 State Vs. Kamal her complaint present FIR u/s 356/379/34 IPC was registered. During investigation nothing incriminating came on record against co-accused Rakesh Singh and therefore he was not charge sheeted. After completion of investigation challan was filed against the accused Kamal for the offence u/s 356/379/34 IPC.
2. After taking cognizance against the accused was summoned and charge u/s 356/379/34 IPC was framed against the accused to which he pleaded not guilty and claimed trial and trial started.
3. Prosecution has filed list of Eleven witnesses and has examined Nine witnesses.
4. PW-1 HC Satyawan stated that he was posted at PS:
Palam village as DO from 4 pm to 12.00 midnight. At about 11.45 pm he received rukka from HC Kaluram and the same was sent to SI Kailash Chand. Thereafter, he recorded the FIR No.143/2010 U/s 4 FIR No:186/2010 State Vs. Kamal 25/54/59 Arms Act which is Ex.PW1/A bears his signatures at point A.
5. PW-2 Smt. Ranjana Kumari stated that on 29.05.2010 at about 9 pm she was going to her home through Pankha Road, Janak Puri and when he reached her house i.e. H/No.-D4/51, Vashist Park, then two persons came on one black motorcycle Pulsar (without number plate) and they snatched her golden chain of 2 ½ tolas which she was wearing on her neck. She tried to chase them but in vain. She called the PCR on 100 number. Police persons from PS: Dabri came at the spot. She narrated the incident to the police personals but the FIR was got recorded on 21.06.2010. IO recorded her statement which is Ex.PW2/A bears her signatures at point A. On 21.07.2010 she joined the TIP proceedings at Tihar Jail. She was unable to identify the other accused Rakesh in the TIP proceedings. But the other accused Kamal refused to join the TIP.
6. PW-3 ASI Satbir Singh stated that on 21.06.2010 he was posted at PS Dabri as Duty Officer from 4 pm to 12 midnight. At about 5 FIR No:186/2010 State Vs. Kamal 9.45 pm he received a rukka from SI Anil Kumar on the basis of which he recorded the FIR No.186/2010 computerized copy of FIR is Ex.PW3/A, which bears the impression of her signature at point A. (Original seen and + returned). He also made endorsement on the rukka and the same is Ex.PW3/B which bears my signatures at point-A.
7. PW-4 HC Roshan Lal stated that on 08.07.2010 he was posted at PS Palam as HC. On that day he along with Ct. Rajesh were checking vehicles at old Mehrauli road at about 10 pm. At that time three persons were coming on motorcycle No.6917 (last four digits of motorcycle), make Pulsar of Black colour from the side of railway Phatak, Palam. They stopped the motorcycle for checking and the accused Kamal present in court today was driving the aforesaid motorcycle. They asked them to produce the documents of the motorcycle but they could not produce the same. Information was given at the PS: Palam village, SI Kailash Chand came at the spot. They handed over all the accused persons along with the motorcycle 6 FIR No:186/2010 State Vs. Kamal to the IO/SI Kailash Chand. On interrogation by the IO they came to know the motorcycle was stolen from the area of Safdarjung Enclave. IO took the casual search of all the accused persons and recovered one knife, from the possession of accused Rakesh. IO prepared the tehrir and got the case registered through HC Kalu Ram. IO arrested all the accused persons. IO recorded the disclosure statement of accused Rakesh Singh and accused Kamal vide disclosure statements Ex.PW4/A and Ex.PW4/B respectively, both bears his signatures at point A, case property was deposited at malkhana. IO recorded his statement.
8. Ct. Rajesh Kumar stated that on 08.07.2010 he was posted at PS: Palam as constable, on that day he along with H Ct. Roshan Lal were checking vehicles at old Mehrauli road at about 10 pm. At that time three persons were coming on motorcycle No.DL 8S AB 6917 (forged number), make Pulsar of Black colour from the side of railway Phatak, Palam. They stopped the motorcycle for checking and the accused Kamal present in court today was driving 7 FIR No:186/2010 State Vs. Kamal the aforesaid motorcycle. They asked them to produce the documents of the motorcycle but they could not produce the same. Information was given at the PS: Palam village, SI Kailash Chand came at the spot. They handed over all the accused persons along with the motorcycle to the IO/SI Kailash Chand. On interrogation by the IO they came to know the motorcycle was stolen from the area of Safdarjung Enclave. IO took the casual search of all the accused persons and recovered one knife, from the possession of accused Rakesh. IO prepared the tehrir and got the case registered through HC Kalu Ram. IO arrested all the accused persons. IO recorded the disclosure statement of accused Rakesh Singh and accused Kamal vide disclosure statements Ex.PW4/A and Ex.PW4/B respectively, both bears my signatures at point B. Case property was deposited at malkhana. IO recorded his statement.
9. PW-6 W/Ct. Urmila stated that on 09.07.2010 she was posted at PS: Dabri as DD writer. On that day she recorded the DD No.52B regarding chain snatching and the same is Ex.PW6/A (OSR). 8 FIR No:186/2010
10. PW-7 Inspector Anil Yadav stated that on 21.06.2010 the complainant Smt. Ranjana Kumari came to the police station. He recorded her statement and prepared tehrir which is Ex.PW7/A which bears his signatures at point A. He got the case registered and further investigation was marked to ASI Akbar Ali.
11. PW-8 SI Kailash Chand stated that on 08.07.2010 he was posted as SI at PS: Palam Village. On receipt of DD No.23A he reached old Mehrauli road where he met HC Roshan Lal and Ct. Rajesh. They handed over three accused persons namely Rakesh, Kartar and Kamal (present in the court) and one knife along with one motorcycle No. DL 8S AB 9617, Pulsar of Black colour. He recorded the statement of HC Roshan Lal and prepared the tehrir and got the case registered through Ct. Rajesh u/s 25/54/59 Arms Act. He got the case registered and came back at the spot. He recorded the disclosure statement of Rakesh and accused Kamal vide memo already Ex.PW4/A and Ex.PW4/B both bears my signatures at point B. 9 FIR No:186/2010 State Vs. Kamal Both the accused persons had disclosed that at Pankha Road, Vashisht Part they had snatched one chain from one lady. He arrested the accused person. He gave information to the PS: Dabri vide DD No.52B regarding the disclosure statement of accused persons. ASI Akbar Ali from PS: Dabri came to Palam police station on 09.07.2010 and he handed over to him related documents and copies of disclosure statement to him, who recorded his statement.
12. PW-9 Sh. Prashant Sharma, (Ld. MM/Saket) stated that on 16.07.2010 he was posted as MM at Dwarka Courts, New Delhi. On that day an application Ex.PW9/A for TIP of accused Kamal S/o Sh. Raghubir Singh and Rakesh Singh s/o Sh. Darshan Singh was marked to him by Ld. Link MM Shri Vijay Shankar. The accused were produced in muffled face by IO ASI Akbar Ali before him and the accused were identified by the IO. He asked accused Kamal and Rakesh if they wants to get their TIP conducted to which they replied affirmative and their separate statement to that effect were recorded separately. The date of 21.07.2010 was fixed for conducting TIP 10 FIR No:186/2010 State Vs. Kamal proceedings at Tihar. He further stated that on 21.07.2010 TIP proceedings were conducted by him at Tihar Jail in respect of accused Rakesh and the complainant Smt. Ranjana Kumari was not able to identify the accused. On the same day he also conducted the TIP proceedings of accused Kamal but he refused to join the TIP proceedings as his photo was taken by the police officials. He was warned that an adverse inference can be drawn against him on his refusal at the time of trial. His statement was recorded separately by him. The TIP proceedings of accused Rakesh is Ex.PW9/B bearing my signature at point A and the TIP proceedings of accused Kamal is Ex.PW9/C which bears my signature at point B. The application for supplying the copy of TIP proceedings to IO is Ex.PW9/D.
13. No other witness was examined by the prosecution and PE closed. Statement of accused was recorded u/s 313 Cr.P.C. in which he denied all the allegations against him and further stated that he do not want to lead any evidence in his defence. Therefore, DE closed and matter fixed for final arguments.
11 FIR No:186/2010
14. I have heard the arguments of both the parties. Ld. APP for the State has argued that the case is totally proved against the accused persons and they be given maximum punishment. Ld. Legal Aid Counsel for accused stated that he is implicated in the false case. The witnesses has also given contradictory statements. The FIR is also lodged after a very long delay of about 22 days. Nothing is recovered from him and story of prosecution is concocted and accused is liable to be acquitted.
15. I have gone through the oral and documentary evidence on record and analyzed the statement of witnesses.
16. As per the principles of Criminal Law, it is the duty of the prosecution to prove its case against all the accused persons beyond any reasonable doubts. The statements of witnesses must be un- contradictory, reliable and corroborative.
12 FIR No:186/2010
17. In the present case, charge is framed against the accused for the offence U/s 356/379/34 IPC. As far as Section 356 IPC is concerned, it reads as under:-
" Assault or criminal force in attempt to commit theft of property carried by a person- whoever assaults or uses criminal force to any person in attempting to commit theft on any property which that person is then wearing or carrying, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. "
18. And section 379 IPC prescribed about the punishment for the offence of theft. The offence of theft is defined u/s 378 IPC as under:
" whoever, intending to take dishonestly 13 FIR No:186/2010 State Vs. Kamal any movable property out of the possession of any person without that persons consent, moves that property in order to such taking, is said to commit theft.
Explanation:........"
19. Therefore, to prove the offence U/s 378 IPC against the accused, it is to be established on record that the said theft regarding the golden chain from the neck of complainant was committed by the accused and for proving the offence u/s 356 IPC, it is again to be proved that during the committing of alleged theft the accused assaulted the complainant or used criminal force against the complainant.
20. In this case complainant is herself only eye witness of the incident. Although it is not a rule of evidence that there should be specific number of witnesses to rely upon the prosecution, but the statement of the witness to be relied upon must be uncontradictory 14 FIR No:186/2010 State Vs. Kamal and corroborative. The complainant had given her statement before the court with some contradictions to her statement before the police i.e. Ex.PW2/A. In Ex.PW2/A she had not stated that one of the assailants was wearing a helmet whereas in her statements before the court she stated this thing. In her cross examination she stated that she along with her son chased the assailants as her son was called by her who was standing near the place of incident. These facts are not stated by her in Ex.PW2/A and her son was also not made a witness by the prosecution. No such reason is given by the prosecution that when there was a eye witness and that also son of the complainant, then why he was not joined into investigation.
21. Regarding giving information to the police about the incident also there is contradictory version. In her statement before court, complainant stated that she called PCR and police personal from PS: Dabri came at the spot and she narrated the incident to the police whereas in rukka Ex.PW7/A, it is written that complainant have got recorded his statement at PS. 15 FIR No:186/2010 State Vs. Kamal
22. There is also a delay of about 22 days in recording the FIR and this delay is not explained by IO or complainant in any way. It is admitted by complainant in her examination before the court that incident was occurred on 29.05.2010 and FIR was recorded on 21.06.2010. This gap is also corroborated by Ex.PW2/A in which date of incident was written as 29.05.2010 and date of sending the rukka is mentioned as 21.06.2010. No reason was stated that why FIR was recorded or information was given after such a long delay.
23. It is held by Hon'ble Supreme Court in Sahib Singh Vs. State of Haryana AIR 1997 SC 3247 that a deliberate delay of six hours to lodge FIR at PS when one of the sons of the deceased was available to go to police station immediately, delay was held to be deliberate and delay casts a doubt on the veracity of prosecution story. Again while discussing about the importance of fact of delay in lodging the FIR the Hon'ble Supreme Court in Ram Dass Vs. State of Maharashtra, AIR 2007 SC 155 observed that the fact that the report 16 FIR No:186/2010 State Vs. Kamal was lodged belatedly is a relevant factor of which the court must take notice.
24. In the present case also the delay is of very long period. Moreover, nothing is stated that why the information of the incident was given after the gap of a considerable period. Therefore, keeping in view the settled principles of Law on this point, court thinks that the delay is deliberate one and is held as fatal to the prosecution.
25. The case on the accused based merely upon the disclosure statement. Nothing is recovered from the accused and the disclosure statement made by him incriminating him in the alleged offence is not admissible as per the principles of Evidence Act. Regarding the identification of the accused also the complainant is not affirm. He has not exactly stated that the accused had snatched chain from her person. The alleged co-accused was not identified by the complainant during TIP and the present accused refused to participate in TIP as he stated that he was photographed by the police. Although 17 FIR No:186/2010 State Vs. Kamal if the accused refuses for TIP then the adverse inference may be taken against him but it is only inference and not confirmation without any other solid proof of the identification. During the examination of complainant before the court she had given a fluctuated statement on the identification. In her chief she identified the accused present in the court who snatched her golden chain but during cross examination she stated that the chain was snatched by the person who was pillion rider and she cannot say that whether the person present in the court was driving the motorcycle or was pillion rider. The collective reading of chief and cross examination suggest that the complainant was not in a position to say with confirm view that the accused snatched her chain. The conviction of the accused cannot be based on the probabilities or on guess as per the settled principles of interpretation of criminal statutes. Other all the witnesses are only procedural formal witnesses and their deposition is not sufficient to link the accused with the alleged offence of theft or using the criminal force on the complainant.
18 FIR No:186/2010
26. Therefore after going through the statement of witnesses and documents placed on record, court comes at the conclusion that alleged offence is not proved against the accused beyond reasonable doubts. Chain of evidence is not completed against accused. The case of prosecution becomes doubtful, the benefit of which goes to accused as per principles of criminal justice. Hence, accused Kamal S/o Sh. Raghbir Singh stands acquitted for the offence u/s 356/379/34 IPC in the present case FIR No. 186/2010. Accused Kamal be released forthwith if not required in any other case. File be consigned to record room after due compliance.
Announced in the open court
on this 19/10/2011 (Dr. JAGMINDER SINGH)
METROPOLITAN MAGISTRATE
DWARKA COURTS/DELHI
19 FIR No:186/2010
State Vs. Kamal
FIR NO: 186/2010
PS: Dabri
U/s 356/379/34 IPC
State V. Kamal
19/10/2011
Present: Ld. Sub. APP for the State.
Accused Kamal produced from J/C.
Sh. Pramod Kumar, LAC for accused.
Final arguments heard today.
Vide separate judgment pronounced and dictated in the open court, accused Kamal is acquitted for the offence u/s 356/379/34 IPC. Accused Kamal S/o Sh. Raghbir Singh be released forthwith if not required in any other case. File be consigned to record room after due compliance.
(Dr. JAGMINDER SINGH) METROPOLITAN MAGISTRATE DWARKA COURTS/DELHI